ble, and it has frequently been held that the term "trustee" carries constructive notice. Marbury v. Ehlen, 72 Md. 206. The basis of liability is therefore the same in both classes of cases, namely, a negligent confederation with the trustee in an act injurious to the cestui. While in some cases of trust of personal property there is an implied power of sale, Jones v. Atchison, etc., R. R. Co., 150 Mass. 304, trustees do not usually have such power, and these exceptional cases afford no excuse for a total failure to investigate, as in the principal case.

REVIEWS.

LEGISLATIVE METHODS AND FORMS. By Sir Courtenay Ilbert, K. C. S. I. E. Oxford: The Clarendon Press; London and New York : Henry Frowde. 1901. pp. xxxi, 372.

The author's position, as Parliamentary Counsel to the Treasury, is a sufficient guaranty of the worth of any work from his hands on the subject of legislative methods, since upon him rests the responsibility for the drafting and form at every stage of all the Government bills introduced into the British Parliament. From a man who has so ably filled this important office much was to be expected, and those who will have the good fortune to read Sir Courtenay Ilbert's book will be in no wise disappointed. Beginning with a brief sketch of the customary law of England and its relation to the statute law the author contrasts the English legal system with that of various countries of continental Europe. After a short discussion of the contents of the English statute book and the different editions of the Statutes, he describes at considerable length the various efforts to systematize and improve the statutory law, both by the expurgation of defunct acts and by the consolidation of living measures. The chapter on codification is intensely interesting. The author ascribes the failure of the ambitious projects of the various codifiers partially to the absence in England of the motive force so keenly felt in continental Europe, namely, the absolute necessity consequent on increasing commerce of doing away with the diverse systems of law that so frequently prevailed in different portions of what had become one country. For example, in Germany, before the present code there were six general systems of law in force, besides numerous local customs. In England, however, the King's Writ ran over the entire country centuries before there was any central judicial authority in the continental nations. But the author finds the chief reason for the dilatoriness of England as regards codification in the haphazard system of English legal education, the student rarely seeking to take a scientific view of the legal principles he is applying. The author does not consider the cause of codification hopeless in England, notwithstanding the relaxation of such efforts since 1896, but he recognizes the great difficulties in its way—not the least of which is the general unpopularity of these acts, and the almost entire passivity of the legal profession, with the exception of the commercial lawyers, to whose efforts are due what legislation there is along that line the Partnership Act, The Bills of Exchange Act, and the Sale of Goods Act, to say nothing of that monumental piece of consolidation, the Merchants' Shipping Bill.

A great deal of very valuable material is to be found in the chapter

dealing with Indian and Colonial legislation. Its contents are largely based on the replies of the Colonies to questions propounded by the Colonial Office, at the instance of the Society of Comparative Legislation. The space devoted to each Colony is necessarily small, but the author has readily seized the salient points of their legislative methods. A noteworthy chapter treats of the efficiency of Parliament as a legislative machine. The book concludes with numerous specimens of statutory forms, and a discussion of their respective advantages and disadvantages. In short, it would be difficult to imagine a book of more use to the practical legislator. The style is so clear and pleasant, and the subject matter of such vital importance, that notwithstanding the necessarily technical nature of portions it is of great interest even to the unlearned reader.

F. R. T.

JOHN MARSHALL. By James Bradley Thayer, LL. D. Boston and New York: Houghton, Mifflin & Co. 1901. pp. 157. It is not often that a man accomplishes so many things in one little book as Prof. Thayer has done in this one. He has filled in the large but rather vague outlines of the historical portrait of Marshall, until we seem really to see the man; and he has given us a concise, discriminating, and convincing estimate of the great judge's purposes and achievements, particularly of his inestimable service to posterity in giving to the Constitution the broad and vigorous interpretation which carried the new nation safely through its early difficulties, and gave it strength for the supreme test of the Civil War. These things seem to have been done without yielding to that partiality to which biographers are so prone, for Prof. Thayer does not hesitate to point out a few indiscretions and errors, nor to admit that in many departments of legal learning Marshall has had equals or superiors among American jurists. Nevertheless a perusal of the book, which is rather a sketch than a biography, leaves the reader not only more than ever convinced of the substantial basis of Marshall's fame, but filled with a new admiration for the sweetness, simplicity and strength of his personal character. To this Prof. Thayer has added, out of his own wide observation and vigorous judgment, a few practical suggestions on the subject of Constitutional Law as applied to legislative enactments, which well merit the careful consideration of all who have to do with the making or the interpretation of our laws.

THE LAW AND PROCEDURE OF UNITED STATES COURTS. By John W. Dwyer, LL. M. Ann Arbor: George Wahr. Ann Arbor: George Wahr. 1901. pp. xxi, 339The increasing importance of the Federal Courts makes familiarity with the organization and jurisdiction of these courts more and more necessary, and it is chiefly of these two subjects that this work attempts to give a general outline. Beginning with a brief historical review of the development of this country, the author describes the organization of the various United States Courts and the division of the judicial power under the Constitution and acts of Congress. The original and appellate jurisdiction of the four main branches of the Federal Courts is then considered in detail, with a chapter on removal of cases from the State Courts, and a brief general statement of certain extraordinary remedies and rules of procedure.

The work is not an exhaustive examination of the authorities, nor is

the subject treated with sufficient detail to be of great value except to the beginner. The extracts from leading decisions in the Supreme Court, inserted extensively throughout the work, while of great assistance, in several instances might have been judiciously condensed. The treatment is in general accurate, but to the student the book would be of greater value with more extensive references to authorities under the large number of related topics necessarily so briefly touched upon. On the whole, however, the author has accomplished his purpose of presenting an elementary outline of this important branch of the law.

FALSTAFF AND EQUITY: AN INTERPRETATION. By Charles E. Phelps. Boston and New York: Houghton, Mifflin & Co. 1901. pp. xvi, 201. Review will follow.

AN EPITOME OF LEADING CASES IN EQUITY. By W. H. Hastings Kelke, M. A. London Sweet & Maxwell, Limited. :

240. Review will follow.

1901. pp. xx,

THE BENCH AND BAR AS MAKERS OF THE AMERICAN REPUBLIC. By Hon. W. W. Goodrich. New York: E. B. Treat & Co. 1901. pp. 65. Review will follow.

A COMPILATION OF THE BAR EXAMINATION QUESTIONS OF THE STATE OF NEW YORK. Edited by Wilson B. Brice. Albany: Matthew Bender. 1901. pp. 229.

THE TAX LAW OF THE STATE OF NEW YORK. Bender Edition. Albany Matthew Bender.

1901. pp. 168.

Second Edition.

LAW OF REAL PROPERTY. By Charles T. Boone. San Francisco: Bancroft Whitney Co. 1901. 3 vols. pp. xxvii, 612; 631; xiii, 651. Review will follow.

PROBATE REPORTS ANNOTATED. Vol. 5. By George A. Clement. 1901. New York: Baker, Voorhis & Co. pp. xxix, 774. Review will follow.

A TREATISE ON THE RIGHTS AND PRIVILEGES GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES. By Henry Brannon. Cincinnati: W. H. Anderson & Co. pp. ix, 562. Review will follow.

1901.

THE INSULAR TARIFF CASES IN THE SUPREME COURT.

"HE editors of the REVIEW have delayed the issue of this number until they could obtain from Washington authentic copies of the opinions rendered in the Insular Tariff Cases on May 27 last. There is opportunity now to give only a slight and very imperfect notice of them.

It is fortunate for the country and for the future of our system of constitutional law that the Supreme Court has recognized the essentially political nature of the questions with which the General Government has had to deal in legislating for our new possessions. But it is also matter for regret and anxiety that, in reaching its conclusions, the court should have had so narrow a majority. This fact, and much that is said in these opinions, may well draw sharp attention to the vital and absolutely fundamental distinction between the legislative and the judicial question in cases of the class to which these now under consideration belong. Where our system intrusts a general subject to the legislature, nothing but the plainest constitutional provisions of restraint, and the plainest errors, will justify a court in disregarding the action of its coördinate legislative department, no political theories as to the nature of our system of government will suffice, no party predilections, no fears as to the consequences of legislative action. In dealing with such questions the judges are, indeed, not acting as statesmen, but their function necessarily requires that they take account of the purposes of statesmen and their duties; for their own question relates to what may be permissible to a statesman when he is required by the Constitution to act, and, in order that he may act, to interpret the Constitution for himself; it is never, in such cases, merely the dry question of what the judges themselves may think that the Constitution means.

Of the half dozen cases, more or less, lately decided, the most important is that of Downes v. Bidwell, raising the question of the constitutionality of the Act of Congress which took effect May 1, 1899, providing, temporarily, civil government and a revenue system for Porto Rico. The plaintiff, in the United States Circuit Court for the Southern District of New York, sought to recover

from the collector duties on oranges brought there from the island, which had been paid under protest in November, 1900. The plaintiff lost his case below; and on error to the Supreme Court the judgment was affirmed. In deciding, as they did, that the legislation of Congress was constitutional, the judges stood five to four. They held that, in the absence of treaty provisions, a region acquired by conquest and treaty does not immediately become a part of the United States, in the sense of that provision of the Constitution which requires that duties, imposts, and excises shall be uniform throughout the United States; but that Congress may subject it to such revenue legislation as may seem best; so long, at least, as it is not permanently "incorporated" into the United States.

Implied in this proposition, and in the reasoning employed by all the judges who sustain it, are two or three other general propositions of much importance.

1. As to the political catch which we have been hearing so much, about the Constitution following the flag or not following it, we may collect from all the opinions, including (as to this matter) those of the minority, that wherever the flag is rightfully carried the Constitution attends it. To be sure that is obvious enough. That is to say, no rightful power can ever be exerted under the authority of the United States, which is not founded on the Constitution. But all parts of that instrument are not relevant to all inquiries, or applicable to all situations. And, moreover, the silence of the Constitution and its tacit references and implications, pointing steadily to the usages of other nations, these go with it, as well as its expressions. The Constitution is not a code of detailed precepts.

2. The United States may acquire territory as the result of war and treaties, without any qualification as to kind or quantity, or as to the character of its population. It may be Canada, or a cannibal island, or an island of slaves and slave owners.

3. The mere acquisition or cession of a region does not "incorporate" it into the United States so as to subject it generally to those clauses of the Constitution which restrain and prohibit certain action by the Congress of the United States; but such regions may be temporarily governed, in some respects, at least, as seems most suitable for their own interests and those of the United States.

4. The question of when these regions shall be "incorporated" into the United States is for Congress.