ard of the family of States and a distinctive type of government, as well as a people, that has no prototype in history. It is the child of the genius and inspiration of the Founders. The correlation between American standards and American governments alone assures the perpetuation of the American type.

It is Americanism that is attracting the emigrant. They are coming to receive, not to bring something to America. When the emigrant comes into contact, one or the other must change. Shall it be the emigrant or shall it be "Americanism?" There is but one answer. A great Nation must again spiritedly engage in internecine strife or it must stupidly die if pure "Americanism" does not survive in all its vigor in every State government. It follows that it cannot survive if communism be permitted in certain States under the extension of the doctrine of "effecting" every important human endeavor "with a public interest."

We are constrained to inquire if the emigrant, or a group of his mind, or their descendants, shall be permitted to cut down the tree of Americanism that they found established in a State; engraft upon its stump the foreign ideas of government from which they felt inclined or obliged to flee and call the result an American State entitled to full sisterhood and respect? May the indulgent Providence that has so favorably fixed the destiny of this great Country, forbid! Is political expediency, experimentation or license so essential to this generation that, in order to humor its obstinate, undisciplined and untrained soul, it must be permitted to tear down a tried, proved, sacred and revered structure that has made happiness possible to so many millions. Who but John Marshall's great Court may prevent this suicide, by laying a restraining and disciplining hand upon waywardness, recklessness, and political opportunism?

THOMAS W. SHELTON.

NOTES OF IMPORTANT DECISIONS.

IS PROOF THAT DEFENDANT'S WIFE WAS A PROSTITUTE BEFORE MARRIAGE ADMISSIBLE AGAINST DEFENDANT'S PLEA OF SUDDEN PASSION ON LEARNING OF WIFE'S INTIMACY WITH DECEASED.-The Texas Court of Criminal Appeals in the spirit of Him who wrote on the sea-washed sand the guilt of the woman taken in adultery, has recently held that a prostitute who marries and fully discharges her duties as wife is entitled to the same protection from her husband and the same consideration from society as one who never strayed from the paths of virtue, and that her past life of shame and sin cannot be portrayed to the jury for the purpose of showing that the husband who killed another to save her name had nothing to fight about. Bereal v .State, 225 S. W. 252.

In this case which was a prosecution for murder, the Court held that where defendant sought to reduce the crime to manslaughter because of sudden passion on learning of deceased's criminal intimacy with defendant's wife, where her conduct had been good for seven years, except with deceased, evidence that she had, prior to marriage, been an inmate of a house of prostitution was not admissible. In support of this position the Court said:

"We cannot agree with the proposition that a man who has married a Magdalene may not love and be loved in return, and that she may not become the guarded object of his conjugal care. The man who frequents the houses of fallen women may feel that he is no better than they, and it would seem might link his fortunes with one of them without forfeiting his right to care for her and protect her thereafter; and if from the time of their marriage, he have every reason to believe her true and faithful to him, he should have every right arising in behalf of another man in defense of the honor of his wife, while she occupies to him that relation. If the manslaughter was admitted to be predicated on some insulting words regarding her character before she married, or if immorality on her part subsequent to her marriage appeared to be known to appellant, the case would be different, but if for seven years the woman had been appellant's wife, without lapse, we think he might invoke the law of manslaughter unhindered by proof of what she had been before they married. Ballard v. State, 71 Tex. Cr. R. 587, 160 S. W. 716."

Where defendant seeks to justify a killing or reduce the degree of culpability by reason of some insult or wrong done his wife, it is of course competent to inquire whether she is in fact his wife. In a New York case it was held

that defendant may be cross-examined as to the circumstances under which he met his wife and the life she was then leading, with a view to showing that she was not his wife, but his mistress. People v. Webster, 139 N. Y. 73, 34 N. E. 730.

It is also to be borne in mind that the rule stated in the principal case does not prevent testimony on behalf of the state of the wife's previous intimacy with deceased since in that case the husband's act in killing his wife's paramour would not be "sudden passion, but revenge," and the crime would not be reduced in degree. State v. Avery, 64 N. C. 608.

RECENT INCOME TAX DECISIONS.

The following are a few interesting decisions of the Treasury Department involving Income Tax matters:

When Attorney's Fees Are Not Deductible."The fees paid by a property owner to an attorney for his services in securing a reduction of an assessment imposed for a local benefit are not a proper deduction as a business expense. As such fees were paid to reduce a necessary capital expenditure in connection with the property against which the asssessment was levied, they constitute a part of such capital expenditure, and hence are to be considered a part of the cost price of the property for the purpose of determining gain or loss in event of its sale. (Also sec. 214 (a) 1, art. 101.)”— Office Decision No. 739.

Where Low Salaries Have Been Paid. "If a corporation has paid no salaries to its officers during 1917, or has paid them salaries which were unusually low in comparison with the salaries paid to the officers of competing concerns, and thereby created an abnormal condition which seriously affected its net income and tax liability, it may properly receive consideration with the view to determining its excess profits tax liability for 1917 in accordance with section 210 of the Revenue Act of 1917."-Committee Recommendation No. 326.

Amounts Distributed at Liquidation or in Excess of Profits.-"The surplus and undivided profits referred to in article 1549 of Regulations 45, means the earnings and profits accumulated since February 28, 1913, and on hand at the date upon which the dividend is paid. Any distribution in excess of such undistributed earnings and profits represents a return of capital to the stockholder and if the amount of such return of capital is in excess of the cost to the

shareholder of his stock or its fair market value as of March 1, 1913 (if acquired prior to that date), the amount of the excess represents taxable income to him subject to both the normal tax and surtax for the year of its receipt. In case of the liquidation of the corporation or the sale by a stockholder of his stock upon which he has had a certain return of capital, the amount so returned to him must be added to the amount received in liquidation or to the selling price, as the case may be, for the pur pose of determining the gain or loss arising from the transaction. If, prior to the liquidation of the corporation or the sale of the stock, the shareholder has received a return of capital in an amount equal to the cost of his stock or its fair market value as of March 1, 1913, as the case may be, the entire amount received by him from the liquidation or sale represents taxable income subject to both normal tax and surtax for the year in which received."--Office Decision No. 736.

Sale of Stock Received as Dividend.-"Held, that stockholders receiving a stock dividend upon stock purchased at different times subsequent to February 28, 1913, and at different prices, may not use as a basis for computing gain or loss upon the sale of such dividend stock, the quotient of the total cost of the purchased stock divided by the total number of old and new shares added together. Each share of dividend stock sold must be allocated to a particular lot of purchased stock and the basis for determining gain or loss upon the sale of any such stock shall be determined by using the cost of the shares to which such dividend share has been allocated. If the particular lots cannot be identified, the provisions of paragraph 3 of article 1547, as amended by Treasury Decision 3059, must be followed. If, however, the taxpayer is able to identify his various purchases, he may allocate, according to his wishes, the stock received as a dividend, except that no share of purchased stock may, for the purpose of this computation, be credited with more than its proportionate share of the dividend stock."

"In computing the gain or loss upon the sale of the purchased stock it is held that the same basis must be used in each case as is used in computing the gain or loss resulting from the sale of dividend stock allocated to the particular lot of purchased stock which is sold. (Also sec. 202, art. 1561.)"-Office Decision No. 735.

Doing Business on Large Amount of Borrowed Capital.-"Where a corporation operated its business with a large amount of borrowed capital during the year 1918, and thereby created an abnormal condition which rendered its invested capital disproportionate to its net in

come as evidenced by comparison with representative corporations engaged in a similar or like trade or business, and where it received insurance on the life of one of its officers which created an abnormal condition with respect to its net income, it may properly receive consideration with the view of determining its excess profits tax liability for 1918, in accordance with sections 327 and 328 of the Revenue Act of 1918."-Committee Recommendation No. 327.

Depreciation of a Leasehold Interest.—“The M Company obtained a lease in 189- covering a period of 99 years, for which it pays nothing except the stipulated annual rent. The ques

tion raised is whether the company may set up the value of said lease as of March 1, 1913, and charge off depreciation over the remaining term of the lease."

"In the case of a lease held by the original lessee who acquired it prior to March 1, 1913, without any payment other than a stipulated annual rent, the presumption is that the lease had no value as at March 1, 1913. Under this presumption there is no basis for a depreciation deduction. This presumption can be overcome only by evidence showing conclusively that the lease had a value as of March 1, 1913, for depreciation purposes. There is no prescribed method by which the value of a lease as of March 1, 1913, in excess of its presumptive value as at that date may be established. The burden is upon the taxpayer to establish the basis for depreciation to the satisfaction of the bureau."-Office Decision No. 720.

Sales on Installment Plan.-"In the case of sales of personal property where substantial initial payments are made (more than 25 per cent of sale price), article 42 of Regulations 45 provides that obligations of the purchasers are to be regarded as the equivalent of cash. It is recognized that in many sales of this type the obligations of purchasers, even though represented by notes or other paper in negotiable form, cannot be discounted or otherwise converted into cash without material loss because of lack of credit on the part of the buyer and the nature of the property covered by such contracts. The obligations of the purchasers is those cases can scarcely be considered the equivalent of cash in any sense, and it is not contemplated by the regulations that such obligations are required to be so treated. On the other hand, the profits from such sales may be computed in accordance with the rule prescribed in cases of the sale or contract for sale of personal property on the installment plan, provided, of course, the taxpayer chooses to do so as a matter of consistent practice, and pro

vided a statement is attached to the taxpayer's return disclosing the fact and showing conclusively that the obligations of the purchasers are not the equivalent of cash."-Office Decision No. 715.

THE AFTERMATH OF CODIFICA

TION.*

It may seem difficult to imagine any phase of codification that has not been discussed and exhausted at the meetings of our bar associations and kindred learned bodies since David Dudley Field joined issue with James Coolidge Carter. James Coolidge Carter. Codification has been praised and condemned. declared inevitable and impossible, pronounced necessary and futile, timely and premature. Most of these utterances, however, have been put forth in a spirit of prophecy, and in this connection it is good to remember the pragmatic test of prophecy that the greatest of the prophets set down:

"If the thing follow not nor come to pass, that is the thing which the Lord hath not spoken; the prophet hath spoken it presumptuously, thou shalt not be afraid of him." And now that the codification of a considerable section of our everyday law is a reality, we need not be afraid to remind the prophets that their warnings and promises seem to have been as thoroughly forgotten as party-platforms the day after an election and probably for the same reaThe Anglo-American respect for what the Latins merely shrug their shoulders at, the fait accompli, is a wonderful institution. What else distinguishes our hard-fought political campaigns from those of some of our less favored neighbors, among whom every decision at the polls is likely to be a signal for a new revolution? Here the beaten party takes his whipping

sons.

*An interesting paper read before the Association of American Laws at St. Louis, Aug. 23, 1920. Dr. Isaacs is a Professor of Law in the University of Pittsburg.

(1) Deuteronomy XVII, 22.

as gracefully as he can in silence, and the successful party is too gracious even to say: "I told you so." And the victory of codification, at least in certain divisions of law, is quite a decided one; it has been endorsed by more States and with fewer mental reservations than has either the Eighteenth or the Nineteenth Amendment.

In fact, we are already beginning to see signs of an aftermath in the fields that the Commissioners on Uniform State Laws have made their own, particularly the fields covered by the Negotiable Instruments Law approved in 1896 and since adopted in fiftyone jurisdictions and the Sales Act approved ten years later and since adopted in twenty-three jurisdictions. These are based on similar English acts of 1882 and 1894, respectively. So we already have a little experience to rely on in determining whether our prophets have spoken presumptuously or not. At the very outset it is abundantly clear that both sides have exaggerated just a little. Codification has not utterly destroyed the foundations of the common law, nor has it made the law so clear that he that runs may read. But it has brought with it some new problems which without receiving articulate expression, are beginning to trouble in various ways the law teacher, the text writer, the practicing lawyer and judge, the jurist and even the codifier himself. Is there any underlying connection among the difficulties independently discovered by the several types of men of law? Can they by seeing each other's difficulties, the better understand their own? For example, the law teachers of the country reached the point last winter of assembling a round table to discuss the methods of teaching codified law. Every law teacher knows that the problem is a practical one, and not merely a reflection of Ellenborough's naive fear that simplification of rules would interfere with the vested interests of technically trained men. But is the problem fundamentally different from that of the text-writer, who without realizing the fact that others share his difficulties,

is in a constant quandary whether to set out the code in bold face type as the basis of his text, or put it into an appendix or ignore it, or to confine his attention to those of its points that have attracted the most judicial lightning? The practicing lawyer and judge are, of course, confronted with minutę problems of construction, which are apt to take the form in their minds of a traditional, local, against a uniform, national rule on specific points. In reality the issues involved are frequently deeper than that of uniformity against particularity; but, conceding for the moment that this is the immediate issue, it still involves several general questions of statutory interpretation, and what is more fundamental a habit of mind with reference to the words of the written law. The detailed problems of construction can readily be illustrated in the course of the cases on a few mooted questions, such as the admissibility of parol evidence to change the status of an anomalous endorser. The growth of a habit of mind with reference to the written law, on the other hand, is not such an easy scientific specimen to pin down or display in alcohol. I venture the opinion, however, that whereas the older lawyer in running down the law leaves his statute book to the last moment to be consulted, "just to make sure that they haven't gone and changed the law on us," younger men are forming the habit of beginning their search in the annotated compiled statute book-and sometimes they don't have to go much further. It is in the work of the jurist that we may expect such an atttitude towards statutes as part of the groundwork of modern law, to begin to assume the proportions of a dogma. One need only compare the lectures of the late Mr. Carter, which surely seemed the height of plausibility to his contemporaries, with the endeavors of the new generation of leaders in our bar associations to elevate legislative drafting to an art, to study noteworthy changes in statute law, to extend the

(2) Cf. note in 29 Harv. L. Rev., 541 on Uniform Construction of the Uniform Acts.

hope of uniform legislation far beyond its original boundaries, to classify and re-state the law not, it is rue, as pure Benthamites, but, let us say, as Neo-Benthamites. If our writers on the general theory of law have not come to the point of speaking of legislation as the normal form of law-as has happened in other countries in certain stages of legal development-they at least deal with it as one of the legitimate forms of law. Codification, both that which is called by the name and that which is the cumulative result of session after session of the legislature, has forced them into this position. Finally, the codifiers themselves have been confronted by certain problems growing out of the attitude of courts to their work. They have learned the wisdom of inserting a definite clause on interpretation in the interest of uniformity and even the ultimate necessity of a special code on uniform interpretation. Apparently after the law is codified and made uniform something must be done to keep it so. Hence the propriety of the commissioners' lending of their auspices to the publication of an edition of their codes, annotated with decisions from all jurisdictions.

Clearly then, there is an aftermath of problems and tasks in in the field of codification. Are they a wild, miscellaneous, haphazard aftergrowth of weeds and thorns and thistles? Or are they a second crop that the workers in the field might reasonably have expected? I venture the opinion that the aftercrop is the natural product of what has been sown. The normal aftermath of codification is glossation. The Glossators best known to legal history are the disciples of Irnerius of Bologna, who flourished in the Eleventh Century, down to Accursius, the writer of the great Glossa, summarizing all the work of the Bologna school. A gloss, as the etymology of the word suggests is primarily the word-byword interpretation of a legal text. The rise and decline of that great school of law represents the development and degeneration of the method of glossation as applied

to the Roman Corpus Juris in Western Europe. The Glossators of Bologna are however, by no means the only students of law who have "discovered" this method of dealing with authentic texts. In fact, every authentic text, whose history as a human document we are able to trace has been subjected to the same treatment-word study-and the reasons are not hard to guess. As one writer with whom I have had the privilege of pondering over the history of one of the codes has aptly expressed it:

"Law changes as language changes. Laws are words; words are laws. In the beginning there were customs, conventions -words. They became laws. We have codification. Codification is law (or language) stereotyped, rigid fixed, dogmaticprosaic. The experience reflected in the code is the past; and life brings new experiences. The words acquire new meanings or shades of meanings in different generations; among different individuals of the same generation. 'What do they mean?' becomes the vexing question. Glossation inevitably follows. The scribes, the learned, the lawyers or the judges are to discern their 'true' meaning by a logical process of reasoning. Alas, reason soon becomes pseudo-logical syllogism, and sinks into mere playing with words-with words or laws dead or dying; with words without content or meaning."3

To this proposition the average AngloAmerican lawyer, none too fond of abstractions, would react somewhat as follows: "I have never had occasion to think of it that way, but if you mean that a code is words and that words require interpretation, the proposition is quite obvious; but what of it?" In other words, he would demur. Not so the true codifier. His psychology was voiced long ago by the prophet and lawgiver, whom I quoted at the outset :

"Ye shall not add unto the word which I command you, neither shall ye diminish from it."4