Page:The Green Bag (1889–1914), Volume 22.pdf/139

 Review of Periodicals Consolidated Laws, reads as follows :——~

Real

Property

Law,

"‘The existence of an unexecuted power of ap intment does not prevent the vesting of a

uture estate, limited in default of the

execution of the power.’ "This, I submit, is inconsistent with section

55 (which we have been considering as section 29

of

the

Revised

Statutes).

The

ﬁrst

change, therefore, which I would suggest,

is the repeal of section 41.

I would further

ur e that ‘is intended to take effect’ replace ‘ta es effect’ in the heading of section 55, as more accurately expressing the true mean ing of the section. It would also be desirable to have a settled construction of section 40 (which we have been considering as section 13 of the Revised Statutes), if not by judicial decision, then by legislative amendment. None of these chan es, it is needless to say,

would cast any re ection upon judges who have felt themselves bound by the decisions." Stare Docisis. "Law and Justice.” By Dean George W. Kirchwey, LL.D., of Colum

bia Law School. 2 Lawyer and Banker 213 (Dec.). "It is not easy to repel the charge that the conservative traditions of the courts and their reverence for the doctrine of stare decisis render them incapable of moving fast enough to meet the new demands of the new day. It is not so that I read the signs of the times and my brethren of the bar have not made the conservatism of the judges and their blind adherence to recedent the burden of complaint against t e bench. Rather it is the innovating spirit of the courts and their disregard of precedent which have called down u on their devoted heads the criticism of the ar. But, beyond this I cannot see how any candid mind which surveys the course of judicial decision at the present time can fail to see in it a truly remarkable reflection of the tendencies which have re~ cently come to prevail in the body politic." Status. "Is the Fifteenth Amendment _Void?" By Arthur W. Machen, Jr. 23 Harvard Law Review 169 (Jan). The validit of the Fifteenth Amendment is questione in an extended argument. The author, after saying that “the power of three-fourths of the states to amend the Constitution of the United States would seem to be subject to two classes of limita tions,-—(1) inherent and (2) express," takes as his starting point the following exceedingly doubtful assumption: "The in herent limitation is that the so-called amendment must be a real amendment, and

not the substitution of a new Constitution. It may alter many of the vital provisions of the original instrument; but so much of the old Constitution must be left that the new provisions may be regarded as merely en fted on the old stock. A wholly new gnstitution can be adopted only by the same authority that adopted the present Consti tution, namely, ‘the people of the United

127

States,’ represented by the concurrent action of conventions in all the several states within which the Constitution is to be operative." The author's contention is that the Fifteenth Amendment changed the Constitution radi cally, compelling the states to alter their gglitical institutions. This was something yond the power of amendment to accom plish, for such power is subject, he a es, not only to the implied limitation a. ove stated, but also to express restrictions, among them being that "that no state, without its consent, shall be deprived of its equal suffrage in the Senate." He says:— “The words ‘without its consent’ necessarily imply that the state shall continue to exist as a body capable of consentin,or in other words as an autonomous politica community. . . . The Constitution in all its features con templates a federal union of self-governing states; and an abrogation of that feature would seem to be more than a mere amend ment. But however this may be, the matter is made ﬁnite clear by the proviso that no state sha be deprived of its equal suffrage in the Senate without its own consent. . . . "The same clause would seem necessarily to implye that the composition of a state cannot altered without its own consent; for the guaranty of equal suffrage was in favor of the states as they existed in 1789 and as they might subsequently be changed by their own consent or in pursuance of their own laws. . . . ' “The Fifteenth Amendment amounts to a corn ulsory annexation to each state that refuse to ratify it of a black San Domingo within its borders. It is no less objectionable than the annexation of the San Domingo in the Spanish main. “Before the Amendment, the white people.

of South Carolina had the ri ht and power to elect two Senators of the nited States the same re resentation in the Senate as the White op e of Vermont. After the Amend ment, if it is valid, the white people of Ver mont, a state which contains virtually no

negroes and which therefore is virtually unaffected by the Amendment, continue to be entitled to elect two Senators; but the white people of South Carolina have- none at all. "The objection to the Fifteenth Amend ment is not merely that it alters the technical citizenship or membershi

of the state, but

also that it alters its political institutions and destroys its political autonomy. . . . “The objections to the validity of the Fifteenth Amendment raised by this article might be obviated if its a plication within the states could be conﬁne by construction to federal elections for members of the House of Representatives." Tarlﬂ. “The Most-Favored-Nation Clause." By Stanley K. Hornbeck. 3 American journal of International Law 797 (Oct.). “All who discuss the clause agree that care should be taken in makin future treaties, and

that

the

interests

0

commerce

and