many persons are inaccurately called socialistic, but which are by this careful author classified as "the protection of the public," "the support of public education," "the supervision of charities and corrections," and "the control of economic interests." To each chapter is prefixed a useful bibliography, valuable as the basis of study as to any State. It is pleasant to notice that the first reference in the volume cites Chase's preliminary sketch of the history of Ohio. to 1833, the introduction to the future Chief Justice's painstaking edition, in three volumes, of the Statutes of Ohio.

AMERICAN RAILROAD LAW. By Simeon E. Baldwin. Boston: Little, Brown, and Company. 1904. (lxvi+770 pp.)

In the volume before us, Judge Baldwin has given the profession an able and comprehensive treatise on the important subject of the railroad law of this country, which will be of permanent value. The field is a wide one, covering, as it does, questions of franchises and organization, location, construction and equipment, finances, the varied problems of operation, transfers and liens, and questions-here grouped under the title of actions-of remedies, rules of evidence, receiverships, foreclosure, re-organization and the like.

It was manifestly impossible to treat in detail all of these questions in something less than six hundred pages of text (the last hundred pages of the volume being given. over to forms and a full index.) What Judge Baldwin has done has been to give a clear and valuable outline of American railroad law. It is within bounds to say that no law writer in the country is better fitted for this task than the learned author whose book is before us.

The general subject of Operation is more fully treated than are other topics. Not the least important part of the book for reference is the Appendix, where are given various forms of incorporation, location and crossings, construction and equipment, conveyances, car trusts and contracts.

ond and enlarged edition by the publishers' editorial staff. Two volumes. Rochester, New York: The Lawyers' Cooperative Publishing Company. 1904. (xxxiii+xvii+2120 pp.)

The first edition of Mr. Abbott's wellKnown Trial Brief was published in 1891, in one volume; this second edition, by reason, chiefly, of the additional authorities cited, but partly because of new matter (e.g. Amendment of Pleadings), has expanded to two volumes. The first volume covers Demurrers; the second is given over to Issues of Fact. The general plan and arrangement of the book is good; the statement of propositions is clear; so that it would seem that a new edition, once in a dozen years or so, embodying pertinent cases decided in that interval, is all that is needed to make the Trial Brief of value to the profession for

years to come.

THE LAW OF WATERS AND WATER RIGHTS. By Henry Philip Farnham. Three volumes. Rochester, N. Y.: The Lawyers' Cooperative Publishing Company. 1904. (clxxx+896+xvi+997+xiv +1063 pp.)

The subject of Waters and Water Rights is treated in these volumes under three principal heads, namely: Rights of States and Nations, Rights between Public and Individual, and Rights between Individuals. The discussion of the Rights of States and Nations is brief, filling a bit less than one hundred pages. The importance of these volumes lies, however, in the exhaustive treatment which the author has given to the Rights between Public and Individual and the Rights between Individuals, and to the large variety of subjects which are included under these two general heads.-for example subjects (to mention only a few) so widely different as Rights of Riparian Owners, Municipal Water Supply, Drainage, Ferries, Fisheries, Irrigation, Mill Rights, Subterranean Waters and Rights between Landlord and Tenant. Perhaps

the most valuable chapters are those on Municipal Water Supply and Drainage.

THE ART OF CROSS-EXAMINATION. By Francis L. Wellman. New and enlarged edition. New York: The Macmillan Company. 1904. (404 pp.)

It is not often that a law book goes into a second edition within a twelve-month; and it is probable that even this book of Mr. Wellman's, excellent as it is from a purely legal point of view, would not have enjoyed, so quickly, the good fortune of a new edition, if it had appealed solely to the members of the legal profession. Mr. Wellman has, however, performed the difficult task of writing a book which is of equal interest to the lawyer and the layman, and which is, without question, the most popular law book of the year.

This book, however, has been reviewed at length in our columns so recently (THE GREEN BAG, February, 1904), that it seems necessary to say, at the present time, only that the second edition has been re-written to a considerable extent, and enlarged, partly by the addition of new chapters on "Cross-examination to the Fallacies of Testimony" and on "Cross-examination to Probabilities,-Personality of the Examiner, etc.", and partly by the bringing in of fresh illustrations. In its present form the book is, more than ever, "sound, interesting! and useful."

and a revision of such a treatise as this, is necessary about once in ten years, in order that the book may keep pace with Code changes and with decisions on pleading under the Code. A volume dealing with "Reformed Procedure"- the "grand principle" of which Professor Pomeroy, in the preface to the first edition, defined as "the abolition of the distinction between legal and equitable suits, and the substitution of one judicial instrument, by which both legal and equitable remedies may be obtained, either singly or in combination"— is of practical use, of course, to the lawyer practising in those jurisdictions (about half of the entire number of States) where Code pleading has been adopted; but Professor Pomeroy has written with such enthusiasm and knowledge that his treatise is also of value to the lawyer whose interest in the subject is purely theoretical.

The editor of the present edition, Professor Bogle, of the University of Michigan, has performed his editorial duties with judgment, adding considerable new matter and bringing the citations down to date.

CYCLOPEDIA OF LAW AND PROCEDURE. Edited by William Mack. Volume xiii. New York: The American Law Book Company. 1904. (1049 pp.)

The thirteenth volume of the Cyclopedia covers topics from Damages to Descendible. The principal articles are those on Damages, by Robert Grattan and Frank E. Jennings; Death, by Joseph Walker Magrath and Frank W. Jones; Deeds, by Joseph A. Joyce and Howard C. Joyce; and Depositions, by James Peck Clark. Other important contributions are those treating of Dead Bodies, by Frank W. Jones; Action of Debt, by Frank E. Jennings; Dedication, by William Alexander Martin; Depositories, by Arthur W. Blakemore; and Deposits in Court, by Everett V. Abbot. The notes are full and valuable, as usual.

CURRENT LEGAL ARTICLES.

IN the National Review (London) for September, the "Reminiscences of an Irish County Court Judge"-the late Judge O'Connor Morris-contain the following just estimate of one of the few great judges of the present day-Lord Chief Baron Palles:

The most brilliant figures on the Home Circuit of my day were John Thomas Ball and Christopher Palles, men of the most eminent parts, but very unlike each other.

. . Palles had a logical and most powerful intellect, extraordinary industry, immense learning; above all, a fearless and independent spirit. He brought these great qualities to the Bench he adorns. He is, perhaps, the ablest judge in the Three Kingdoms. He ought to have had the Great Seal of Ireland years ago, but lax administration and political favors have deprived him of the position to which he had a clear right. He has been supplanted and distanced by clever time-servers in their craft, who are not worthy to unloose his shoe-latchet. Grattan's phrase "The curse of Ireland is on him." The genius of this great master of his art has been frowned down at the Castle.

In

THE novel, but important, subject of "The Lawyer's Lachrymal Rights" is cleverly discussed by Albert W. Gaines, of the Chattanooga Bar, in the American Law Review for September-October. Mr. Gaines asks:

Has a lawyer, in the course of his argument to the jury, the right to cry? Has he the right, arguendo, to give vent to "words that weep and tears that speak?"

It will tend to quiet the professional alarm, and at the same time appease the professional wrath, to know that lawyers in Tennessee, at least, have a judicial determination of the question recognizing and distinctly adjudicating the inviolable lachrymal rights of the lawyer.

In a well-considered case, which came before the court upon an assignment of errors to the effect that "counsel for the plaintiff, in his closing argument, in the midst of a very eloquent and impassioned appeal to the

jury, shed tears and unduly excited the sympathies of the jury in favor of the plaintiff and greatly prejudiced them against the defendant," the Supreme Court of Tennessee, in an able opinion delivered by that erudite, discriminating jurist, Judge Wilkes, upheld the lawyer's constitutional right to cry before a jury. . .

As counsel for appellants in the Tennessee case referred to availed themselves of the salutary rule which excuses the citing of authorities "when there are none known to counsel;" and while the court in delivering the opinion stated, that, after diligent search no authority could be found, there being no precedent, we may confidently rely upon this case as the leading case upon lachrymal rights; and, besides the guarantee of the Constitution that the citizens of each State shall be entitled to all of the privileges of the citizens of the several States, we feel that the decision is correct in principle, so sound, so broad and so universal in its application that counsel all over the land may confidently rely upon it, and, under its protection, may unrestrainedly exercise their constitutional rights and give way to the "melting mood" in the presence of the court and jury.

The right of the lawyer to cry before the jury is not only fundamental, but it is a prescriptive right, having existed from time immemorial whereof the memory of man runneth not to the contrary.

The demand for redress of all grievances at Runnymede contains no allusion to any encroachment upon the lawyer's lachrymal rights; and so the Petition of Right and the Bill of Rights are significantly silent as to the lawyer's right to cry, proving conclusively that lachrymal rights were universally recognized and were not even questioned by the most tyrannical of kings, and that, too, in the face of the fact that these rights were being constantly, openly and notoriously practised by a profession which has never yet been accused of a retiring modesty in the assertion and maintenance of its prerogatives.

Lachrymal rights are strictly personal.

The law knows no such maxim as qui lachrimat per alium lachrimat per se. Every lawyer has the constitutional right to cry for himself, and the presence of the official CourtCrier does not curtail his unquestioned privilege of giving vent, if he so desires, to a veritable lachrymal storm.

THE recent arrest and fining in Massachusetts of an attaché of the British Embassy is treated in an eminently fair manner by the English legal journals. For example, the Law Times says:

The arrest and imposition of fines for furious motor driving on Mr. Gurney, the third secretary of the British Legation at Washington, and for contempt of court in refusing to plead, by a magistrate at the police court at Lenox, Massachusetts, on Monday in last week, were clear violations of international amenities, and the fines have, accordingly, been remitted and a suitable apology offered. The fiction of exterritoriality has, however, been established by the consensus of nations with a view to the securing of a free and fearless discharge of diplomatic functions, unrestrained by obedience to the local jurisdiction, for ambassadors and the members of their suites possessing a diplomatic character, among whom are included secretaries of embassies, who, like the ambassador himself, hold commissions from the Sovereign. While the privilege based on the fiction of exterritoriality continues it exempts its possessors from local jurisdiction. It is, however, a privilege which might well be waived in an ordinary police case, and Mr. Gurney would probably have been more discreet, and have acted more in the spirit of international comity, if he had paid the fine for furious motoring without invoking his diplomatic character as a plea to the magisterial jurisdiction-a course which Mr. J. Mortimer, who, when an attaché of the American Legation at St. Petersburg in 1859, on his arrest by a policeman for violating the law prohibiting smoking in the streets of St. Petersburg, writes to the Press that he followed, "paying the fine and carefully abstaining from informing the magistrate that

he was a member of the Corps Diplomatique." In ordinary cases of a violation by a diplomatic agent of the local criminal law, the correct and usual course is to ask his recall.

And in the same admirable spirit is the Law Journal's comment:

There is distinct authority that in the United States a diplomatic functionary is not amenable civilly or criminally (Ex parte Cabrera, I Washington, U. S. 231). In this country exemption from civil process is undoubtedly secured by the Diplomatic Immunities Act of 1708, but there is no case of authority declaring that absolute immunity from criminal process exists. The famous case of Pantaleone da Sa, in Cromwell's time, is the other way. A member of the Portuguese Embassy was tried and executed for a murder in the Royal Exchange, and the protests of Portugal were treated as unfounded in law. But in modern times it seems to have been uniformly admitted that diplomatic personages are here exempt from criminal proceedings. Attempts to hold inquests on deceased members of the Chinese Embassy have been defeated, and process for bilking cabmen, keeping fowls so as to be a public nuisance, and for park offences have failed on the ground of privilege. The jurists are not agreed as to the basis and true limits of diplomatic immunities, nor on the question whether they are to depend on the fiction of extraterritoriality or on some other more reasonable principle. But, assuming the existence of the privilege, its abuse may lead to serious consequences, and we doubt whether the British diplomatic service will gain much by possessing a person who claims the diplomatic privilege to break the police regulations of the country to which he is accredited or to scorch over its surface to the danger of its citizens.

It seems, however, that even American officials abroad are sometimes guilty of breaking speed rules, as witness the following item from the "Irish Notes" in the same issue of the Law Times from which is taken the extract quoted above concerning Mr. Gurney:

The campaign against furious motor driv

ing in Dublin continues. The last person to fall into the hands of the police was the American Consul in Dublin, who has been summoned and fined. It was suggested rather than put forward that his international character gave him some sort of immunity; but, of course, such a contention could not be raised for a moment in the case of a consul.

ON the question of the legal status of a consul, the Law Times says:

The claim of the consul-general for Spain in Liverpool for exemption virtute officii from rates which he has declined to pay, referring the matter to the Spanish ambassador, cannot, we submit, be sustained on grounds of international morality. Consuls

are,

no doubt, clothed with diplomatic functions by special conventions in nonChristian countries, where exceptional powers and immunities are rendered necessary by the absence of stable and responsible local government. Consuls commissioned by foreign States to look after the commercial interests of their citizens in Christian countries and countries possessing a stable government conducted on principles consonant with European civilization have never been charged with the conduct of foreign affairs, and have not accordingly been endowed with a diplomatic character, although by comity they enjoy certain exemptions from local and political obligations, such as exemption from personal taxes, from arrest for political reasons, and from having soldiers quartered in their houses, and, in short, from such burdens as might hinder the effective discharge of consular duties. They are not, however, withdrawn from the civil and criminal jurisdiction of the courts of the country in which they officiate. "Consuls," wrote Jefferson, "are not diplomatic characters, and have no immunity whatever against the laws of the land," while Mr. Hannis Taylor lays down the proposition that consuls who hold real property and have a fixed residence in the country cannot by reason of their consular status divest such property of its national

character;" (Hannis Taylor's Public International Law, p. 358). For a full exposition of the consular status, see Ibid., pp 357-361.

IN the Central Laze Journal Robert A. Edgar, discussing the question "Is the Presumption of Innocence in Criminal Cases to be Weighed as Evidence in the Case," says in conclusion:

It will be seen from an examinatian of the foregoing authorities that a considerable difference of opinion exists as to the nature of the presumption of innocence, and whether it can be considered "evidence" in favor of the defendant which can be "weighed" by the jury. Prior to the case of Coffin . United States [156 U. S., 432] courts had reached diverse conclusions, without apparently making any exa.nination of the question or giving reasons for their judgments. That case purports to have considered the question carefully d The doctrine there announced has since been vigorously denied by Prof. Thayer and other text writers.

novo.