that he had laid. To persuade twelve of his fellow citizens that his client was guiltless of a base and deliberate murder was impossible. But when he showed to the Supreme Court how all the i's had not been dotted and all the t's crossed in the indictment; how the seal of the court had been attached to the summons, not with the tongue but with a sponge; how the trial judge had used a steel pen instead of a quill one to record the conviction, then there would be an end to this absurd conviction of his client, and the whole proceedings after the days spent in the examination of witnesses, the long speeches of counsel, the patient and laborious. work of the judge, intent on doing justice, the anxious and faithful deliberation of the jurors, in their effort to find a righteous verdiet, would blow up and the time and money which had gone into it all would disappear as suddenly and as completely as a peaceable merchantman on the high seas struck by a German torpedo. It is likely, however, that the sharp-witted lawyer did not persuade his colleagues at all or try to. They were able and sensible men in that early constitutonal convention-one has only to read their names to be convinced of this-and they would not have been easily made to believe that such a clause had any place in the constitution of a sovereign State. Engaged in weightier matters, this apparently innocent line was easily "slipped over"-to use the language of the professional politician-to become a part of that great mass of form and technicality which has for many decades blinded so many of our appellate judges, until they are unable to see the very form of Justice herself.

THE DECISION of the Supreme Court was based upon two grounds; first, that the prisoner had a right to know from the words of the indictment itself what State it was whose laws he had violated, and second, that the Constitution was the highest law, binding judges as well as laymen, and that no one was justified in acting contrary to the requirements of the Constitution. The first reason is absolutely silly; the second seems to rest on a rather solid basis, but loses its force when you examine it more closely and find that while the premises are sound, the conclusion is both illogical and unsound. One can hardly have the patience to even argue the court's reason, number one, for it recalls and has its counterpart only in those absurd and profitless controversies of the schoolmen of the middle ages where the subject of dissertation and polemic was whether the Devil was so large as to fill all space or whether he was so small that ten thousand of his kind could dance easily on the point of a needle.

JUST THINK of it! A man is charged with a brutal murder. The indictment begins with the formal venue, State of Missouri,

Boone County. It then proceeds to say that on a certain day in the city of Columbia, in the county of Boone, in the State of Missouri, the prisoner murdered a certain named person (with great care it describes the weapons and the part of the body where the wound was given and the other technical requiremnts of an American indictment) and then concludes that it was done by him "against the peace and dignity of State." He is tried and convicted. But when his case gets to the Supreme Court it is discovered that the scrivener in copying the draft of the indictment had left out the article "the." "Oh, ho," say the Supreme judges, "this will never do; this man is entitled by our humane laws, to be told whose laws he has broken, so that he can make a proper defense. It may be true that he has lived in Missouri all his life and knows perfectly well where he was when he committed the murder, but how can he be sure that he is charged with breaking the Missouri laws? How can he and his lawyers make up his defense when they may think all the time that he is going to be punished for breaking the laws of Vermont, or the laws of Russia, or the laws of Patagonia? That will never do." And so the proceedings are all set aside, and as after one reversal of a conviction, it is generally difficult to get the witnesses together a second time, the murderer is sent back into society unpunished and certainly a little amazed himself at the curiosities of the law. Is it any wonder that the people who do the voting at elections when they read nonsense like this, begin to rail against courts and lawyers? The wonder really is that they do not go farther and sweep them both out of doors as the people in France did more than a century ago.

ON ITS FACE the second reason has some force. The constitution says that an indictment for a crime must end with the words, "against the peace and dignity of the state." No one has any right to leave out any one of these words; the State's representative who is sworn to obey the law has no right to disobey it-to do so is a species of petit treason, so to speak. Granted. But if one of its agents is ignorant, or careless or disobedient, must the whole machinery of justice stop? If the law should enact that all court houses shall have tin roofs and a grafting contractor and cunning municipal authorities shall substitute pine shingles painted in imitation of tin, shall all the records that are stored in them be destroyed and the building razed to the ground? If the law should say that the lamps in a city shall be lighted at 9 p. m. and they are not lighted until 10, shall everything that was done in that illegal hour, every contract that was made, every sale that is closed, every piece of work that is commenced or continued or completed, be declared null and void and be destroyed by sheriffs and marshals? Suppose a manufacturer of boots and shoes should

have a rule that all the employes should enter the factory in the morning through a certain door and go out at night by a different door and after a large stock has been completed and ready for delivery, his manager should discover that this rule had not been obeyed and that some of his employes had come in and gone out of the wrong door. And suppose that this manager was so obsessed with the importance of that rule that he at once ordered all the goods to be destroyed and all the work to be done over again at the employer's expense. Would not the employer's feelings be about what are the feelings of the people today towards their upper servants-the judges of their courts? It is, after all, a question of the point of view. The modern English or continental lawyer would say: "Of course, we are not as jealous of our constitution as you Americans are of yours; we have no such apparent veneration for any human documents that exists. Our rulers or our Parliament drive their horses and carriages, so to speak through the constitution every day, and everything they do goes. Our courts are not superior to our representatives as yours are. But if we were as loyal to our constitution as you are to yours, it would never occur to us to punish breaches of it as you do; it would never suggest itself to us that the way to keep the constitution secure was to turn criminals loose upon the country. If we thought as you do, that for a citizen and especially an official, to disobey the supreme law was a sort of treason to his country it would certainly occur to us that the thing to do would be to punish the guilty officer and not the innocent public. Instead of opening the prison doors to your Missouri murderer we would have fined or imprisoned the man who was charged by the State with the duty to draw the indictment in the constitutional form, but failed in his duty and disobeyed his instructions. Nothing else than this would seem to us to be the proper way to have things done as they should be." And this would be the answer of any sane man not wedded to an absolute system of Judicial Procedure.

THE three judges of the Supreme Court of Missouri who were responsible for this celebrated and ill-famed decision, were able, conscientous and patriotic men. One of them was "recalled" by an indignant public when he presented himself for re-election. The other two died before their terms were ended. All three have now gone over to the majority and THE DOCKET needs not the warning of the classic poet to speak no ill of the dead, for they were all his personal friends. But they belonged to a school of Jurisprudence which today is discredited and abandoned, nearly everywhere. To them, form was everything. If the judicial machine worked according to rule, it was not for them to interfere with results. They put law above justice; their professional bible

was the old common law treatises which they studied every day and quoted in every judgment, in quiet ignorance of the fact that in the land where they were written they had been relegated to the dust bin and the garret. The movement for justice as against form they sincerely abhorred and sought to stem it by all the neans in their power. They were the American prototypes of the great lawyers of England of a century ago, whose memories are dear to the country they served sp well according to their lights, and whose portraits and statues are to be seen wherever lawyers resort-Baron Parke, one of the greatest English common law judges, but who, when it was proposed to permit pleadings to be amended, exclaimed: "Great Heavens! think of the state the record would be in!" and Lord Ellenborough, one of the greatest of English Chief Justices, who when it was proposed in the house of Lords to abolish the penalty of death for stealing from a dwelling house anything of the value of five shillings, declared that on it stood the security of every man who left his house to go to his daily labor. "Repeal that law," said he, "and no man can trust himself for an hour out of doors without the most alarming apprehension that on his return every vestige of his property will be swept away by the hardened robber." But today the judges of England hold no such views as these and Chief Justice Reading is as far from Chief Justice Ellenborough and Baron Parke as they were from Sir Thomas More and Lord Bacon, who believed that witches were the children of Satan and should be hanged, and that it was not wrong in a judge to accept gifts from suitors in his court. But the three Missouri judges were living in the twentieth century while believing in and practicing the judicial ideas of the eighteenth. And when we contemplate the wrong they honestly and sincerely did to the State whose interests they thought they were advancing, we have a striking illustration of the saying of another distinguished judge, that in religion, in politics, in law, in what you will, a man to do much harm must be an able man and rather a good one.

BOOK REVIEWS.

COMMENTARIES ON THE LAWS OF ENGLAND. By SIR WILLIAM BLACKSTONE, Kt. Edited by William Carey Jones, Director of the School of Jurisprudence, University of California. 2 vols. Bancroft-Whitney Company, San Francisco. 1915.

The appearance in the year 1915 of this comprehensive and scholarly edition of Blackstone's famous Commentaries, when the last English edition of standard character was published in 1844 calls to mind the words of the late Professor F. W. Maitland that: "The Tory lawyer little thought that he was giving law to colonies that were on the eve of a great and successful rebellion. Yet so it was. Out in America, where books were few and lawyers had a mighty task to perform, Blackstone's facile presentment of the law of the mother country was of inestimable value. It has been said that among American lawyers the Commentaries 'stood for the law of England,' and this at a time when the American daughter of English law was rapidly growing in stature, and was preparing herself for her destined march from the Atlantic to the Pacific Ocean." The first editions of Blackstone in America were printed and published in Philadelphia, the present, latest, and most authoritative edition comes from the shores of the Pacific, being edited by the Director of the School of Jurisprudence of the University of California and printed and published by the great Bancroft-Whitney Company of San Francisco. When we add to these facts that the last previous editor of the Commentaries was Dean William G. Hammond, of St. Louis, we can fully realize the truth of Maitland's words.

In view of the loss of the plates of Hammond's excellent edition a new and up-to-date Blackstone is certainly welcome. Judge Jones and his colleagues have done a real service to the history of English and American law by giving us this well-edited and interestingly annotated edition of the Commentaries. The preface and the introduction "Concerning the Commentaries," are well worth while from the historical legal side while the Bibliography of the Commentaries gives information not readily found elsewhere. The whole edition is not merely a good edition of Blackstone but is a compendium of English and American law based on that great authority. Great use has been made of Stephen's New Commentaries while the numerous and lengthy foot notes bring out the relation of Blackstone's text to the law of today.

In the way of mechanical work these two handsome volumes leave little to be desired. They are supplied with excellent tables of contents and with a very good index in which the sub-heads are alphabetically arranged. There will now be no excuse for any law library or student of English and American law to be without the Commentaries.