Page:The Green Bag (1889–1914), Volume 24.pdf/604

 Reviews of Books

559

Professor Beard's little book is based no law should be set aside as uncon upon an article of his in the Political stitutional unless plainly and palpably Science Quarterly for March, 1912, of so, and remarks that a law does not which it is enlargement considerably respond to this test when the court is lengthened by quotation. The article seriously divided regarding it. He also may have been first called forth by urges that the federal Judiciary Act or L. B. Boudin's paper on "Government the Constitution be so amended that by Judiciary" in the same journal every case in which due process of law (v. 26, p. 238, June, 1911; 23 Green is invoked against a statute designed to Bag 426). This was the ablest argu ameliorate human conditions may by ment in favor of the doctrine of usurpa appeal or writ of error be carried to the tion that had appeared for some time. highest court of the nation. Most writers on the subject, at the present day, agree with Professor Beard. JENKS' DIGEST Facts brought out, for example, by James A Digest of English Civil Law. Edited by Ed B. McDonough (46 American Law Re ward Jenks. M.A., B.C.L., of the Middle Temple. Principal and Director of Legal Studies of the Law view 45, Jan.-Feb. 1912), by Charles H. Society, formerly Fellow of King's College. Cam Burr (60 Univ. of Pa. Law Review 624, bridge. Book II, part III, Quasi-Contract and Tort. Book III, Law of Property. By Edward June 1912), and by J. Hampden Jenks. Betterworth & Co., London; Boston Book Dougherty in his recent book, ought Co., Boston. Pp. xlii, 122 + 9 (index). (Each $1.25 to clinch Professor Beard's argument, net.) so that future debate involving historical JENKS' Digest, now in course of publication, is an interesting at premises may be drawn into more profit able fields. The question for historical tempt to state the civil law of England students now becomes not that whether in the form of a code. A similar attempt the framers of the Constitution intended has been made in Lord Halsbury's Laws to give the judiciary the power of de of England, but on a different scale, and claring statutes null and void, but greater significance attaches to the whether they contemplated the more shorter abridgement if it proves ade extreme forms of the exercise of that quate to the task in hand. Probably power of which we have had examples the only serious shortcoming of this in recent years. There is also the inter digest, if any, will be deemed to be that esting phase to be considered of state arising from the suppression of matter constitutional history, and of the not treated by the authors as essential, development of the doctrine of judicial and from the sacrifices of light and nullification of statutes in the states. shade entailed by condensation. Codi Mr. Dougherty has collected a weighty fication is primarily concerned with lead mass of historical evidence which leaves ing principles, but must also avoid nothing of the argument that the vagueness and an amateurish simplicity framers of the Constitution did not by incorporation of the correct amount intend to give the federal judiciary the of detail, just so much and just so little. power to set aside statutes. At the It is unlikely that Mr. Jenks has erred same time, he is not an extreme partisan greatly on the side of undue condensa of a wide judicial discretion knowing no tion, or that he and his fellow draftsmen limitations. On the contrary, he realizes could have been desired to show them the existing evils, and proposes sensible selves masters of a much greater suc remedies for them. He thus urges that cinctness of literary style. But the