c. Advocates, teachers, or members of any organization believing in or advocating or teaching (1) the overthrow by force or violence of our Government or of all forms of law, or (2) the assaulting or killing of Government officials, or (3) unlawful injury or destruction to property, or (4) sabotage. d. Aliens writing or publishing or distributing written or printed matter advocating any of the principles contained in "b" and "c" above. "Members of or affiliated with any organization, association, society or group that writes, circulates, etc. any written or printed matter of the character described in subdivision 'd.'” e. Most of the persons "taken up" were ignorant or illiterate aliens who, for some vaguely conceived esprit de corps or the hope of getting a job, had joined an association or group whose leaders possessed or were putting out or distributing material described in subdivision "d." Some of the material was really inflammatory; some of it was thought to be so by the Attorney General's office or by Mr. Burns' organization or by local witchfinders. A few of the persons arrested were "philosophical anarchists." One of this latter class was a follower of Tolstoi and a member of a society composed "of Russians committed to the theory of non-resistance"; Jane Addams had known him personally many years. "This man, with twentythree other prisoners, was thrust into a cell built for eight men; there was no room to sit, even upon the floor; they could only stand closely together, take turns in lying on the benches and in standing by the door where they might exercise by stretching their hands to the top bars. Because they were federal prisoners the police refused to feed them, but by the second day coffee and sandwiches were brought to them by federal officials. But the half-starved Tolstoyan even then would not eat meat nor drink coffee, but waited patiently until his wife found him and could feed him cereals and milk." Altogether about ten thousand persons were arrested, of whom eventually five hundred and fifty-six were ordered deported as members of proscribed organizations. A smaller number was in fact deported. Of nearly one thousand arrested in Detroit who were confined for a week in the corridor of the upper floor of the Federal Building without beds, and compelled like swine to live in filth, only one hundred and twenty-eight were ordered deported, and of the one hundred and twenty-eight all but eight were paroled upon the recommendation of a committee composed of some of the best and most conservative lawyers in Detroit. The deportations delirium originated in the office of Attorney General Palmer; in the obscurity which surrounds motive it is impossible to say how far Mr. Palmer was affected by a desire to increase his political fortunes, or a general attitude of illiberalism in such matters, or a special apprehension because of the bomb explosion which wrecked his Washington house. In any case he and his subordinates "in weighing the offence added the weight of the fear or of the bad temper which it inspired in the timid public," for proceedings were taken not only against such persons as the Tolstoyan referred to, but also against persons possessing anarchistic literature in quantity insufficient for distribution, as well as against persons who did no more than attend meetings and listen to seditious speakers. As most reading men own books which Mr. Palmer would regard as seditious, and as listening to sensational speakers has generally been regarded as inoffensive and sometimes stimulating to genuine reflection, many of us are subject to arrest on the same grounds as the unfortunates, mostly Slavs, who clogged the jails at the points selected for strategic attack by the Department of Justice in 1920. It is fortunate that so courageous and determined a public official as Mr. Post was able in most of the cases to prevent the ultimate disgrace of the deportation of unoffending persons; but the accidental presence of one man in Washington officialdom to apply constitutional guarantees, and the lack of any protest by our Bar Associations against such an extensive and almost successful an assault upon our bills of rights, gives us again to consider how secure are the foundations of individual liberty in a democracy subject to excitement and guided by politicians who know exactly what they want. The writer is not aware that any study has been made of the sincere attachment of the American people to the idea of "liberty" in their political and social affairs—where it counts so much more than in the field of constitutional law and the behavior of the American people in this regard in contrast to that of other peoples. The promulgation of a general political theory is usually no more than the formulation of an ad hoc position taken in political controversy. As to property, for example, Daniel Webster said that our own immortal Revolution was undertaken, not to shake or plunder property, but to protect it; " yet there were some forty thousand or more Tory emigrants to Canada who doubtless held a contrary view as to the steadfastness with which American revolutionaries adhered in application to the Websterian theory. Similarly, "liberty" meant to the men of '76, as probably to most men today, freedom from particular restraints resented by the mass of citizens normal to that period and region. A larger conception of the term has no meaning to the majority. A comparison of the behavior of the Attorney General's satellites with the arbitrary practices of Bolshevism recalls the story of the Dukhobor who, forgetting the geographical variability of morals, tried to go naked in the streets of London. A policeman set out gravely to capture him, but found himself distanced because of his heavy clothing. Therefore he divested himself, as he ran, of garment after garment, until he was naked; and, so lightened, he caught his prey. But then it was impossible to tell which was the Dukhobor and which was the policeman. CHARLES P. HOWLAND. A CODE OF THE LAW OF ACTIONABLE DEFAMATION. Second Edition. By George Spencer Bower. London: Butterworth & Co. 1923. pp. lii, 469. Fifteen years have elapsed since the first edition of Mr. Bower's notable book appeared. In the second edition, the author tells us, have been cited the new decisions, approximately two hundred and fifty in number, which have been handed down in the interim. This is the thing which, to an American student of the law, makes the task of the English author seem a legal writer's Paradise. One wonders what fraction two hundred and fifty constitutes of the number of decisions on the law of defamation which American courts have rendered during the same period. Without pretending to have made actual count, the writer has the distinct impression, based on following the cases in the advance sheets from week to week, that considerably more than two hundred and fifty defamation cases are decided each year by our courts of last resort. One obvious advantage gained by the English writer is the lessening of the physical labor involved in reading the material on which a book is based. The great advantage is that one can know one has the law as the courts have declared it, whatever may be the merits or demerits of the rules announced by the decisions. The disadvantage is that the writer sometimes exhibits a devotion, not infrequently an almost slavish devotion, to both rules and dicta found in the decisions, regardless of their foundations in reason or expediency. Even so distinguished an author as Professor Dicey exhibited this failing at times in his excellent text on the Conflict of Laws. Mr. Bower, however, seemingly gained the advantage without finding it necessary to worship blindly either a court or its doctrine. In the text of the "code" he states, in statutory form, the rules of the law of defamation as declared in the decisions. In the voluminous footnotes, which form the annotations to the code sections, there is a collection of citations, and in addition a running comment upon the rules as stated. It is a valuable comment, too. If the author believes the rule wholly illogical and anomalous," he says so. Legal doctrines are analyzed, the bubbles of legal fictions are punctured, and cant phrases are interpreted for their true meaning. Still more interesting are the Appendices, twenty-one in number, which form the last half of the book. Their function may be explained in Mr. Bower's own words: "The code only pretends to state the existing English civil law of defamation. Consequently, the commentary which is contained in footnotes refers to and discusses only the authorities for that law." In the Appendices, therefore, are found the historical matter, the "theoretical matter," criticisms of doctrines which are not yet overruled but which ought to be, comments on the policy of legal rules, and other equally interesting topics. Mr. Bower is a learned man, as well as a clear-thinking lawyer. His discussion abounds with apt and interesting references to literature and to literary and judicial history. It is well written. Mr. Bower has so good an English style that we could well get along with less Latin. The Appendices especially are attractive reading, aside from the technical knowledge they furnish upon the law of defamation, a rare thing in a law treatise. No American cases are cited. But the book contains a wealth of historical material, a discussion of doctrines, and a criticism and an estimate of legal rules, that make it valuable on either side of the Atlantic. A remarkably good index affords facility in finding the treatment of any particular problem. Judge Jeremiah Smith reviewed the first edition of Mr. Bower's work in this REVIEW.1 A short excerpt from his critique will serve as a summary here." Infinite labor has been expended by the author in framing the articles in his code. So far as we can judge, no important point is omitted; and there is seldom any ground of objection to the substance of the statements. . . . As to the style and clearness of the essays (or Appendices) as well as to the notes to the Code, every one must entertain a favorable opinion. The author . . . is a scholar as well as a lawyer." HERBERT F. GOODRICH. CHIEF JUSTICE SIR WILLIAM BEREFORD. By William Craddock Bolland, LL.D. With an Introduction by Sir Henry Duke. Cambridge, England: The University Press. New York: The Macmillan Co. 1924. pp. viii, 36. The lapse of six hundred years has failed to suppress the sturdy personality of Bereford, C. J., and even at the present time no reader of the Year Books of Edward II can remain indifferent to his originality, his humor, and his force of character. This lecture is an enthusiastic and sympathetic 1 23 HARV. L. REV. 233. account of the man and his work, written in a popular style, though based on a wide and deep knowledge of the Year Books. The result of Dr. Bolland's essay is to confirm our sense of Bereford's importance in legal history, and to tempt us to the belief that he deserves a really thorough monograph which should examine not only his legal opinions - and much valuable information on the subject is available - but also his relations with the political factions of the time, and his place in the great struggle which occupies the reign of Edward II. Several circumstances contribute to make him the most remarkable man on the bench during the early fourteenth century. In the first place he must have been a master of the courtier's art, for although he was first distinguished in the service of Edward I, yet the new reign finds him the intimate friend of the notorious Piers Gaveston. Indeed, he remained so constant to the unlucky favorite and stood by him so staunchly, that the baronial opposition demanded his banishment as having given the King evil counsel. At this critical moment his fortunes took a sudden and mysterious turn: instead of being banished he was shortly afterwards promoted to be Chief Justice of the Common Pleas, and soon received formal expressions of the opposition's confidence. By what feat of diplomacy this happy result was accomplished we are not told, but it is clear that the adroit C. J. enjoyed the fruits of his dexterity for the rest of his life. The studies of Professor Tout and Mr. J. Conway Davies have unravelled the main threads of the very tangled politics of this period, but all the same there is probably more yet to be said about Bereford's part in these events. Then as a lawyer he stands out clearly among his fellows, and Dr. Bolland gives some interesting examples of his characteristic methods of attacking some of the most fundamental problems of the day- and they often lie deep at the roots of the law. The limits of a single lecture obviously prevented a thorough discussion of his numerous judgments, but we feel sure that much will be learned by reading all his opinions together, for there is in them the germ of a theory of politics and law which marks Bereford as a thinker of no little originality. His brilliance seems to have been too much for his brother justices, however, and not infrequently we find him in a very select minority. But the full bearings of his views upon the relations of King, Common Law, and Statutes can only be ascertained when his position in the political intrigues of the time has been determined. A third mark of distinction which is really of considerable significance is that Bereford seems to have devoted his whole life to legal work, sitting not only in the Court at Westminster but also serving upon countless commissions in the country before he was raised to the bench. This contrasts strongly with the careers of some of his contemporaries, who reached the bench not from the bar, but from the administrative offices of the household. John Benstead, for example, seems to have accepted a seat on the Common Bench as a sort of honourable retirement after a brilliant career as Keeper of the Wardrobe - at that time one of the most important administrative positions in the Kingdom. We must therefore credit Bereford with having devoted his life to the law in an age when the profession hardly existed, and when promotion went frequently to civil servants rather than to lawyers. Although no references to authorities are given, they are easily supplied by anyone acquainted with the Year Books. We are indebted to Dr. Bolland for a most interesting and lively sketch of a remarkable figure in the legal life of the earlier fourteenth century, which will give the reader an excellent idea of the better type of mediaeval justice and the problems he had to face. THEODORE F. T. PLUCKNETT. BOOKS RECEIVED ARBITRATION TREATIES AMONG THE AMERICAN NATIONS TO THE CLOSE OF THE YEAR 1910. By William R. Manning. New York: Oxford University Press. AVANT-PROJETS POLONAIS DE 1922 SUR LA PARTIE GENERALE D'UN CODE PÉNAL. By Pierre Garraud. Paris: Marcel Giard. CITIZEN OR SUBJECT? By Francis X. Hennessy. New York: E. P. Dutton & Co. ENCYCLOPAEDIA OF GENERAL BUSINESS AND LEGAL FORMS. By Clarence F. Birdseye. New York: Baker, Voorhis & Co. FEDERAL APPELLATE JURISDICTION AND PROCEDURE. Second Edition. By Elijah N. Zoline. New York: Clark Boardman Co., Ltd. GERMAN WHITE BOOK Concerning the Responsibility of the Authors of the War. Translated by the Carnegie Endowment for International Peace. New York: Oxford University Press. LA CONSCRIPTION DES NEUTRES DANS LES LUTTES DE LA CONCURRENCE NATIONAL GOVErnment and BUSINESS, THE. By Rinehart John Swenson. German Documents Collected by Karl Kautsky and Edited by Max Montgelas and Walther Schücking. Translated by the Carnegie Endowment for International Peace. New York: Oxford University Press. PRELIMINARY HISTORY OF THE ARMISTICE - Official Documents Published by the German National Chancellery by Order of the Ministry of State. Translated by the Carnegie Endowment for International Peace. New York: Oxford University Press. REASONABLENESS OF THE LAW, THE. By Charles W. Bacon and Franklyn S. Morse. New York: G. W. Putnam's Sons. STATUTE LAW. By William Feilden Craies. Third Edition by J. G. Pease and J. P. Gorman. London: Sweet and Maxwell, Ltd. |