to its welfare; just as swearing, expectorating in certain public places, violation of building laws, etc., etc., are forbidden. Morality and ethics, although kindred sciences, are perfectly distinct from jurisprudence. The latter sometimes assists the former by embodying their principles in a prohibitory

statute.

Gambling, the keeping of houses of ill fame and the violation of the Excise laws, are acts mala prohibita because of legislative prohibition..

So far as the regulation of the subject of gambling has been guided by principle or rule, the view has been followed not to punish private or individual gambling, but to make professional gambling and the keeping of gambling houses or instruments of gambling, criminal. At common law the whole subject was treated under the head of public nuisances, being such inconvenient and troublesome offenses as annoy the whole community in general. And all disorderly inns or ale houses, bawdy houses, gambling houses, stage plays, unlicensed booths and stages for rope dancers, and the like, were public nuisances and indictable as such.

The principle underlying the punishment of these offenses was that they were flaunted in the face of the public and tainted the tastes, habits and morals of the people. The law seemed satisfied to shut them out from

public gaze. But law is a potent factor, and by indirectly making them disgraceful it may have aided the public conscience.

The distinction between these several acts when conducted in private and when carried on as a business or profession in a way that would or might offend the eye, taste or sense of the community, runs through all intelligently-framed statutory law on these subjects.

To sum up, gambling, amateur or professional, public or private, thrives because the laws are unnaturally harsh, confused and conflicting, and convictions cannot be obtained against technical defenses skilfully pleaded. But soaring far above all of these considerations is the impressive fact that this vice is deeply intrenched in the habits

of the people. Now and then some Chivalric Knight, like District Attorney Jerome, will leap into the area and begin a fruitless and expensive campaign for the total extinction of all vices; but after he is fatigued, or becomes functus officio, or the people tire of the subject, they will still be found to exist.

Nothing in the history of modern legal reform has been found, in the treatment of the acts of gambling, prostitution and the illegal sale of intoxicating liquors, more efficacious than the remedies of the old common law. The mischief sought to be remedied was not to sanction any of these acts, but to sternly keep them from public view. The persons guilty of committing these offenses were justly characterized as disorderly persons and persons guilty of disorderly conduct, and punished as misdemean

ants.

IN the Law Magazine and Review (London), W. D. Morrison, in an article on "The Report of the Commissioners of Prisons, 1903-4," takes up the important question: "Why it is that the number of sentences to imprisonment have increased during the last three years?" He says:

A continental statistician of considerable eminence (Dr. Starcke, I think,) pointed out some years ago, in the Bulletin of International Statistics, that one of the results of war was to increase the volume of crime. Dr. Starcke produced a striking body of facts to show that after continental wars crime had always increased among the population affected by these operations, and in the absence of any other cause it is exceedingly probable that the recent Transvaal War has produced the same effects in this country, so far as regards the increase of crime, as continental wars have produced on continental communities. We cannot with impunity familiarize a population with the horrors of war. Constant tales of blood and slaughter, of disease and death, of the letting loose of the elemental passions of human nature, tend to deaden our higher susceptibilities and to excite the slumbering savage in the human breast. Lowering of the general tone of the community during the

war, combined with the discharge of a vast number of the actual combatants after its close, is quite sufficient to account for the rise in the prison population which we have witnessed during the last three years. It is to be anticipated that this increase will be of a temporary character; the forces of civilization and humanity will in time re-assert themselves and assume their old sway in the public conscience; but it must be recollected that a moral setback takes some time and effort to overcome, and until it has been overcome we must be prepared to face the unwelcome fact that there will be no di:minution in the volume of crime.

IN an article in the November American Law Register on "Individualism . Law," Judge William T. Thomas, of Montgomery, Alabama, after giving many striking statistics of crime-c. g., tables showing that in the German Empire there are annually per million population 4.85 homicides, and in the United States 129.5; that homicides per annum number 2.34 per 50,000 population in New England and 14.71 in the Pacific States, and that in the United States the ratio of prisoners to population has increased from one to 3443 in 1850, to one to 757 in 1890,-sets down the following conclusions:

First-Variations in the enforcement of law are not so much due to climate, race, density of population, illiteracy, form of government, length of governmental experience, as to a varying leniency in the spirit of its administration.

Second-This varying toleration of crime is largely the result of an impatient desire for individual power, born of unlimited opportunities, causing men to disregard their duties to the social compact.

Third-Beneath it all is a moral unrest, a process of adjustment in individual conceptions of, and cravings for, absolute truth, not yet so crystallized in the aggregate of individual souls as to become the fixed ideals of the people.

FROM a second article on "The Gage of

Land in Medieval England," by Harold D. Hazeltine, in the November Harvard Lac Review, we quote the following extract:

The history of gages to secure loans where the debtor remains in possession of the gaged land until default, begins with the coming in of the Jews and of foreign merchants from Italy and other countries. In the centuries that immediately follow the Norman Conquest it is English policy to foster industry and commerce. Foreigners are induced to visit the realm, and it is sought to make up for deficiencies in English production by bringing in the goods of other countries. Systems of banking and insurance take root. In the interest of creditors new and more efficient processes of judicial execution are established. The Exchequer of the Jews is set up as a branch of the Great Exchequer. A system of registering debts owing to Jewish creditors and the gages that secure them is perfected, this system allowing a free buying and selling of Jewish obligations and efficient execution on default. The needs of other creditors are supplied by giving them, on judgments or enrolled recognizances of debt, new writs of execution in addition to the old common law writs of fieri facias and levari facias: these new writs enabling the creditor to reach the lands and chattels and body of the debtor. The writ of elegit is introduced by the Statute of Westminster the Second for creditors generally. Merchant creditors, if they get their debtors to make recognizance of debt before courts of record or certain public officials, may obtain, on the default of their debtors, even more effective remedy. Merchant creditors may reach. among other things, not only half the land. as under the Statute of Westminster the Second, but all the land of the debtor. These merchant securities are known as "statutes merchant" and "statutes staple." the former being introduced by the Statute of Acton Burnel and the Statute of Merchants in the reign of Edward I., the latter by the Statute of the Staple under Edward III. The advantages of the merchant sectrities are given to all creditors by the Statute 23, Henry VIII., introducing the secu

rity known as a "recognizance in the nature of a statute staple."

A gage of land with possession of the debtor to secure money obligations is, therefore, rendered necessary and possible by this development of credit and of processes of judicial execution; and, very largely for the benefit of the mercantile classes. an hypothecation of land may now be created by judgment and by the registration or enrolment of contracts under seal. The publicity essential to this form of gage is thereby obtained; but it should be well observed that the new security breaks in upon the old law with its restraints on alienation and its requirement that livery of seisin is necessary to the conveyance of rights in land. The old feudal polity is attacked and attacked successfully by commercialism.

JUDGE Epaphroditus Peck, of the Yale Law School, contributes to the Yale Law Journal for November an appreciative article on "The Massachusetts Proposition for an Employers' Compensation Act," in which

he says:

Compensation to the employé for injuries received by him is no longer to rest on the imputation of fault, negligence or other, to the employer. The occurrence of injuries is treated, rather, as an inevitable incident of modern industrial activity, the cost of which should be borne by the business, and be paid for by the consumer in the cost of the article. Every extensive factory must each year spend a considerable sum in the repair and replacement of machinery; but the business involves not only the breaking of machinery; but also the maiming and killing of men. Why is not the latter as much an expense of the business, which should be borne by it, and charged into the price of the product, as the former? Why should the manufacture be carried on so as to be beneficial to the general public and profitable to the proprietor, but to cast a heavy weight of loss upon a few individuals the least able to bear it?

These questions are answered in the proposed "Employers' Compensation Act" by the concise provision in the first clause:

"If an employé in any employment to which this act applies receives personal injury while performing duties growing out of or incidental to such employment, he shall be paid compensation by the employer in accordance with the scale and conditions of compensation hereinafter provided."

This removes all questions of the employer's tortious negligence, and also all questions of the employé's contributory negligence, or "implied assumption" of risks. The single exception is made in section 4 of injuries received "by reason of his own wilful or fraudulent misconduct." Except for this the only question is, did the injury occur in the course of the employment?

To obviate the natural opposition of employers actuated by fear of having the cost of manufacture greatly increased by this comprehensive liability, the act provides a scale of compensation which seems small indeed in comparison with the verdicts now sometimes recovered in personal injury cases, but which would probably compare more favorably with the net result which now comes into the hands of the victorious plaintiff after paying all his bills of litigation. The basis of computation is not the very difficult standard of the money value of the life of the deceased, of the pain and suffering undergone by him, or of the grief of his surviving relatives. The effort is rather to make good to those who have suffered it the support of his wages which they have lost, so far as that may be done without too great hardship upon the employer.

In case of fatal injury, his dependents, if any, receive an amount approximately equal to his aggregate wages for three years, "or the sum of one thousand dollars, whichever of these sums is the larger, but not exceeding in any case two thousand dollars." If there are no dependents, only the expenses of sickness and burial are to be paid, not exceeding two hundred dollars.

In case of total or partial disability, the injured man is to be paid a weekly payment, not exceeding fifty per cent. of his earnings, nor exceeding ten dollars a week, for the period of his disability, not exceeding four years.

IN an article on "The Doctrine of Waiver," in the Michigan Law Review for November, Colin P. Campbell says, in part:

Upon the inquiry whether a waiver is a contract or an estoppel we may reply shortly in the words of an Egyptian parable that it is both but is neither, and may be either. An express waiver is,without doubt, a contract, and this waiver is, strictly speaking, the only true one, the implied waiver being no waiver at all in a literal sense; although because of the language of the courts we must so consider it. To no other waiver would the language of the cases be appropriate. .

Having concluded that an express waiver must present the essentials of a contract it behooves us to briefly consider the so-called waivers, which for convenience we have called implied waivers. As to these but little can be said at this point, although they constitute by far the most important class of waivers. It must be sufficient to say of them here that in the main they should be referred to the principle of estoppel, for upon that doctrine they must rest, and this shows that waivers of this class are not true waivers, but are in reality estoppels, since waiver by the very force of the term implies voluntary action directed toward the purpose of waiving, while a waiver under the doctrine of estoppel is imposed from principles of justice and is enforced by operation of law. It is, in short, an involuntary, compulsory relinquishment of a right..

On the question whether it is essential that the one against whom the waiver is asserted shall have intended the waiver, the article says:

The true rule, then, is that there must have been an intention to waive in order that a waiver shall be effectual; or there must be such conduct on the part of the party desiring to assert the right relied upon by the party against whom the right is sought to be asserted as will make it inequitable to any longer claim that the right exists.

The next principle in point of importance under this general doctrine is necessity for a knowledge of the facts upon the part of

the one against whom the waiver is asserted. Briefly stated, the rule is this: That either there must be an intention to waive the right or there must be such conduct on the part of the possessor of the right with knowledge of the facts and of the right which it is claimed that he has waived that it will be inequitable and unjust to the adverse party for him longer to assert it.

To recapitulate: We have then a waiver consisting of a relinquishment of a right or claim, possible to be made either orally or in writing, and to be either expressed or implied, requiring a consideration or facts equivalent to an estoppel to support it, only possible to be made with knowledge of the facts by a person of full age, sound mind, and under no restraint, and only valid when not contrary to public policy or the rules of law.

SEVERAL interesting questions relating to "Recission by Parol Agreement" are discussed by Professor Samuel Williston, of the Harvard Law School, in the November issue of the Columbia Law Review; for example:

More difficult questions are presented when the subsequent oral agreement does not purport totally to rescind, but only to vary some of the terms of an original bargain, which was within the Statute of Frauds, but of which a memorandum had been made, it seems clear on principle that no right of action can lie for breach of the second agreement or of the first and second combined. To allow such a right would be to enforce a contract within the statute when some terms at least of the contract were oral. On the other hand, if the terms of the oral contract have been performed, such performance operates as a satisfaction of the liability on the original contract. The Statute of Frauds does not apply to executed contracts, so that when the oral agreement is performed its performance has the effect which the parties agreed it should have. If the terms of the oral agreement have not been performed, the original contract still remains in force. Though an oral agreement to rescind without more would

be effectual, where the rescission is to be effected only by the necessary implication contained in the agreement to substitute a new contract differing in some of its terms from the old one, there can be no rescission if the agreement for substitution is invalid. Even if one party offers to perform his promise under the new agreement, the other party may, according to the better view, still insist on the original contract, and refuse to accept the substituted performance to which he had orally agreed. In an early case, however, the Supreme Court of Massachusetts adopted a distinction that was suggested by Lord Ellenborough in Cuff v. Penn, between the contract and its performance. "The statute," Wilde, J., says, "requires a memorandum of the bargain to be in writing, that it may be made certain; but it does not undertake to regulate its performance." The court then proceeds to argue that as a substituted performance would operate as a satisfaction of the original contract, and tender is equivalent to performance, the plaintiff could sue on the original contract and prove in support of it an offer to perform with the alterations later agreed upon. But the prevailing view is that even in the case of a binding contract of accord, tender is not equivalent to performance, and there is no satisfaction even if the tender is wrongfully refused. However this may be, a tender where there is no obligation to accept it cannot possibly have the effect of performance. The learned author of the leading text book on the subject [Browne on the Statute of Frauds] gives his approval to the decision, but the current of authority seems strongly against it.

PROFESSOR C. C. Langdell contributes to the Harvard Law Review for November, a scholarly article on "Equitable Conversion," from which the following extract is taken:

There is one notable exception to the rule that when land is exchanged for money the money belongs to the person who owned the land when the exchange was made; for, when an ordinary bilateral contract is made for the sale and purchase of land, and, pend

ing the contract, the vendor dies, and then the contract is performed, the land will have to be conveyed to the purchaser by the vendor's heir or devisee to whom it will have devolved on the vendor's death, and yet the money will have to be paid to the vendor's executor. Why is this? Primarily, it is because the land of a deceased person devolves upon his heir or devisee, while his personal estate, including his choses in action, deyolves upon his executor. Consequently, when a vendor dies, pending a contract for the sale of his land, the land will devolve on his heir or devisee, and he alone, therefore, can cenvey it to the purchaser, while the contract, in respect to the right which it confers upon the vendor as well as the obligation which it imposes upon him, devolves upon his executor, and, therefore, he alone is entitled to receive the money from the purchaser. Yet, if the executor attempt to enforce the contract at law, he will encounter an insuperable obstacle, for he cannot show a breach of the contract by the purchaser without showing, on his own part, ability, willingness, and an offer to convey the land on receiving the money, and that, of course, he cannot show. His only remedy, therefore, is a bill in equity for specific performance. and equity permits him to file such a bill against the purchaser, making the vendor's heir or devisee a co-defendant, and a decree is made against each defendant, namely, that the purchaser pay the money to the plaintiff on receiving a conveyance of the land, and that the heir or devisee convey the land to the purchaser on his paying the money to the plaintiff; and, though the plaintiff does not accomplish this result on the strength of his legal right alone, yet the only principle of equity which he has to invoke is the principle that the vendor's heir or devisee, not being a purchaser for value of the land, stands in the shoes of the vendor, and so must perform his contract to convey the land.

The foregoing exception has, however, been unwarrantably extended to a class of cases to which it is not at all applicable, namely, to cases in which an owner of land gives to another person an option of pur