The nation had not then outgrown its own organic law. A treaty in violation of the Constitution would have been denounced even by laymen, as null and void. The Republic in its swelling pride of greatness had not accepted the doctrine that the thing created may be greater than the creator, or that two or more departments of the government might set aside the instrument under which they have their being. But if slavery were securely abolished by constitutional provision, it was believed that its continuance could not be accepted as a condition of peace.

When this amendment was drafted General Grant had not commenced the great campaign against Richmond (he had not even been selected for the work), and General Sherman had not reached Atlanta nor organized his march to the sea. No man could prophesy the end. But whatever else might result, a majority of Union men had reached the hope and purpose that there should be an end of slavery. Perhaps to this intense desire, however crude and imperfect his phraseology, may be attributed the joint resolution of Mr. Sumner, on this subject, introduced into the Senate on February 8, 1864, and afterwards pressed by him as a substitute for the Committee's report. It provided as follows: "Everywhere in the limits of the United States, and of each state and territory thereof, all persons are equal before the law, so that no person can hold another as a slave." If this resolution had become a part of the Constitution, those honorable judges who were puzzled by the language of the 13th amendment as it stands, would have been led into inextricable confusion, in an effort to account for the word " states," after the whole area of the United States had been provided for.

In view of the facts referred to, it is fair to presume the Committee concluded that the words "United States" embraced all the states admitted into the Union and all the territories belonging to the government; and that the phrase "any place subject to their jurisdiction" covered the District of Columbia, the forts, arsenals, dockyards, naval and coaling stations, together with any territory then within the seceded states over which any jurisdiction or authority might result from treaties of peace at the conclusion of the then pending war.

Yours very truly,

J. B. HENDERSON.

HARVARD LAW REVIEW.

Published monthly, during the Academic Year, by Harvard Law Students.

THE LAW SCHOOL.

The following table shows the registration in

the School on November 15 for the last twelve years:

For the first time in several years the figures show a slight decrease in the total registration, in the numbers of the first and second year students, and in the relative per cent. of those returning to the second and third year classes. This decrease is largely due to the stricter requirements for admission and to the rule that a student who fails to pass in two courses cannot return.

The following are the usual tables showing the sources from which twelve successive classes have been drawn, both as to previous college training and as to the geographical districts from which they have

come:

The thirty-two men in the first year class holding no degree are Harvard seniors who in each instance however have completed the work required for the Harvard A. B. degree. Thus it may be said that all the members of the first year class are virtually college graduates. The same is true of nearly 99 per cent. of all the members of the School, since, other than Harvard seniors, seven special students are the only men in the School who have not received a degree. Of the fifty-nine special students twenty-six are here for the first time this year, and of these twenty-five are college or university graduates, five having received the LL. B. degree.

There are now in the School graduates of ninety-two colleges and universities, as compared with eighty-two last year and seventy-six the year preceding. In the present first year class forty-four colleges and universities, as compared with forty-seven last year, are represented as follows: Harvard, 69; Yale, 25; Brown, 19; Dartmouth, 11; Williams, 6; Bowdoin, Chicago. 5; Amherst, California, Tufts, 4; Northwestern, Wisconsin, 3; Centre, Cincinnati, Cornell, Georgetown University, Iowa, Minnesota, Princeton, Vermont, Washington and Jefferson, Western Reserve, 2; Bethany, Central, Colorado, University of Colorado, Earlham, Franklin and Marshall, Gates, Georgetown, Haverford, Illinois Wesleyan, Indiana, Leland Stanford, Jr., McGill, Michigan, Mt. Vernon, Ohio State, University of Pennsylvania, Pomona, St. Joseph's, Syracuse, Tulane, Vanderbilt, 1. There are at present in the School thirteen Law School graduates, of whom seven have received both academic and law degrees, representing the following twelve Law Schools: Buffalo, Centre, Cincinnati, Georgetown University, Harvard, Iowa (2), Indiana, Missouri, Northwestern, Texas, and Western Reserve.

RECOVERY FOR DAMAGE RESULTING FROM NERVOUS SHOCK. — It is interesting to note the trend of judicial opinion on the question of allowing recovery for injuries resulting from nervous shock. There is little discussion where the defendant acts wilfully, but where his act is merely negligent, the courts have adopted widely dissimilar views. In New York, Massachusetts, and the English Privy Council the right to recover has been denied. Mitchell v. Rochester Ry., 151 N. Y. 107; Spade v. Lynn, etc., R. R., 172 Mass. 488; Victorian Ry. v. Coultas, L. R., 13 App. Cas. In South Carolina, Minnesota, and Ireland strong decisions have been rendered in the plaintiff's favor. Mack v. South, etc., R. R., 52 S. C. 323; Purcell v. St. Paul, etc., Ry., 48 Minn. 134; Bell v. Great, etc., Ry., 26 L. R. Ire. 428. In a recent English case the defendant's servant negligently drove a van through the window of the room in which the plaintiff was sitting. There was no physical contact, but the court allowed an action, as the plaintiff's fright was such as to cause a miscarriage two months later. Dulieu v. White, 1901, 2 K. B. 669.

222.

The opinion of Kennedy, J., compact and forceful, goes far towards overcoming the objections upon which the contrary decisions are founded. The statement that there is no general duty of care not to frighten others, he argues, is too broad. There is a duty not to injure others. The only question is whether there is an actionable breach of such duty if one is made ill in body by negligence which does not break his ribs, but shocks his nerves. In answer to the objection that as fright is not actionable so no consequence of fright can be, he quotes Sir Frederick Pollock, that "Fear taken alone falls short of being actual damage, . . . because it can be proved and measured only by physical effects," and where measurable damage does result, it is evident that its primary cause was the act which produced the fear, not the fear itself. On the question of remoteness Kennedy disagrees with the Coultas decision. He asserts that if the injury follows the shock as its direct and natural effect, even though not immediate in point of time, it is still a proximate consequence of the shock. The grounds of public policy are lastly examined, and dismissed as insufficient to bar the plaintiff in meritorious

cases, and as involving an unwarranted distrust in the capacity of legal tribunals to get at the truth.

The courts as a rule do not expressly recognize that the ultimate question in such cases is one of expediency, but base their decisions on other grounds. A distinction has apparently been drawn between external effects of shock and those purely internal. Thus if the plaintiff faints the ensuing damage is too remote. Victorian Ry. v. Coultas, supra. Yet if external injury is sustained in jumping off a coach he may recover. Fones v. Boyce, 1 Stark. 493. If his horse bursts a blood vessel and dies the owner can get no compensation. Lee v. Burlington, 85 N. W. Rep. 618. But if it runs away the owner is recompensed for resulting damage. Wilkins v. Day, L. R., 12 Q. B. D. 110. This is not a sound distinction. All organs, internal and external, nervous and muscular, are equally physical, and should be equally protected by the law; and the psychological fact should be recognized that a manifestation of fear through the nervous system is as proximate an effect as a manifestation through the muscular system.

Granting that logically physical damage is often the direct result of nervous shock, though not contemporaneous with it, the question still remains, is it wise to permit recovery without proof of impact or of immediate palpable injury? The objection that the practical application of the rule would be difficult is hardly convincing. It is not easy to translate any personal injury into terms of dollars and cents, yet courts and juries are doing it every day. The argument ab inconvenienti therefore is not insurmountable, and also it must be remembered that the plaintiff has not only to claim that he has suffered, but to prove it. It is urged by many that the courts would be flooded if such claims were allowed; and that three fourths of the claims would be fraudulent. Probably litigation would increase: possibly it should. Still, the threatened flood has not yet overtaken those courts which have granted relief. The principal case is a decided addition to the controversy both as a strong decision and for its sound logic. See 10 HARVARD Law Review, 387; 52 Cent. L. J. 339.

EASEMENTS OF LIGHT AND AIR OVER STREETS. Much less favor has been extended to easements of light and air by the courts of this country than by those of England. It is everywhere held that the doctrine of ancient lights is not suited to the conditions of a growing country, and never became part of our common law. Myers v. Gemmel, 10 Barb. 537. Upon similar grounds some courts have declined to follow the English doctrine of acquiring easements of light and air by implied grant. Keats v. Hugo, 115 Mass. 204; Janes v. Jenkins, 34 Md. 1, contra. Even if such a doctrine is accepted, the better opinion is that its application should be limited to cases where the easement is strictly necessary to the beneficial user of the estate granted. Turner v. Thompson, 58 Ġa. 268. In regard to the rights of light and air over a highway, however, an exception is to be noted. A recent Maryland decision in enjoining the construction of an arch over a public street at the instance of one whose building would thereby have been darkened adopts the view that abutting landowners have an easement of light and air over a public highway. Townsend v. Epstein, 49 Atl. Rep. 629. This right in several jurisdictions is held to exist independently of the ownership of the