v. Boardman, 43 N. Y., 254. In the latter case the testator provided for the establishment of a hospital, to be incorporated within two years after testator's death, provided two lives named in his will should continue so long. The decision in favor of the validity of this gift was regarded as "a pronounced departure from what was supposed to be the rule governing charitable bequests:" People v. Simonson, 126 N. Y., 299, and the conditions of the law are to be strictly maintained. In Cruishank v. Home of the Friendless, 113 N. Y., 337, the executors were to apply as soon as practicable to the legislature for an act incorporating the institution. The trust w. held incapable of being sustained for the reason that the incorporation was dependent upon the will of the legislature, and the period of delay contingent upon the action of the State was not measured by lives: Booth v. Baptist Church, 126 N. Y., 215; Tilden v. Green, 130 N. Y., 29. With the law so adverse to gifts for charitable purposes it seems hardly possible that the question of a gift over from one charity to another, upon a remote contingency, could be raised in New York. The point, however, has been alluded to in one of the inferior courts: In re Williams' Estate, 1 Misc. Rep., N. Y., 440. The bequest was to trustees, to apply the income from the fund to the payment of the salary of the pastor of a church, subject to the condition that, if ever the said church should become extinct, the trustees were to turn over the amount held in trust to the Board of Church Extension. This last gift over, the Court remarked, "was hopelessly bad, and no attempt was made on the argument to defend The will construed in the case of Judevine v. Judevine, 61 Vt., 589, contains clauses that might have called for explanation if the ques tion of remoteness had been raised. A trust-fund was set apart for the education of deserving young men, and at any time after five years from testator's decease the execu tors might in their discretion appropriate what remained to the towns of C and H for school purposes. A codicil provided, "should either town, or both, neglect to carry out the provisions set forth by me, the fund delivered and paid to such town by my executor is to be col. lected from such town and placed in some other town that will carry out my desires." As the court did not find it necessary to refer to this last clause, it must be presumed that no difficulty was presented to its mind in regard to the remote. ness of the gift oyer to the unnamed towns. Although technical objections may be urged against the ruling in Christ's Hospital v. Grainger, based as it is said to be upon a miscon⚫ ception of the purpose of the rule against perpetuities, it is far from likely that it ever will be disturbed. It is always, of course, more satisfactory when legal conclusions are drawn from clear, true, and unambiguous premises, but the precedent has been found useful and convenient for citation, to those conflicts where the charitable intentions of the testator. are opposed by the claims of collaterals. If it is to be the policy of the law that charitable gifts are to be favored to the greatest possible extent, then the rule against perpetuities must yield to that policy. WM. HENRY LOYD, JR. EDITORIAL NOTES. By W. D. L TO THE READER. THE third year of the present editorial management of the AMERICAN LAW REGISTER AND REVIEW opens with only one change in the construction of the magazine. In the year that has passed we have maintained a department of original articles, of annotations, of book reviews, and a digest of recent decisions, together with an editorial department, and occasional notes and comments. The Department of Original Articles, devoted to treating topics of current interest from a legal point of view, will be continued as heretofore. During 1893, the Behring Sea Controversy gave us the opportunity of publishing an interesting article from the pen of one of the assistant counsel, Mr. Russel Duane. The last six months of the year we printed a series of six articles from the pen of CHARLES CHAUNCEY BINNEY, Esq., one of the assistant Attorneys General of the United States, on the new and interesting topic of Local and Special Legislation. These articles have attracted wide notice throughout the country, and form the only complete treatise on the subject. This fact has led us to induce Mr. BINNEY to embody them in book form. The volume will soon be issued, and our subscribers will be duly notified as to when and where it can be obtained. The Annotation Department, or the department which is devoted to the publication of legal briefs, has been, as it will continue to be in 1894, the principal department of the magazine. During 1893 we have published fifty-four “briefs," or careful and minute discussions of recent points which have come up for judicial decision. These cover all branches of substantive and remedial law. current interest of these briefs, it is hoped in a few years that a practicing lawyer will seldom have a case on which he will Aside from the not be able to find a brief, practically already prepared, by turning to the volumes of the AMERICAN Law Register and Review. These briefs are written by efficient lawyers in the active practice of their profession, and are revised by some of the ablest members of the Bench and Bar in the United States. During 1893 we reviewed at length no less than fifty-four books. Indeed, every book of value which has appeared during 1893 har been reviewed during the year, or is reviewed in the present number. A few publishers, we notice, try to send us only those books which they hope will receive a favorable treatment at our hands. To these we can say that they act wisely. The AMERICAN Law Register and Review is not an advertising medium in its book review department for current legal literature. When we receive a book which we do not think is a good one, we deem it our duty to the profession to tell them so. We try to treat all authors fairly and impartially, but we also try to treat our subscribers fairly, and refuse to praise a book which we believe should be condemned. During 1893 we have devoted some four or five pages each month to an "Editorial Note," on a question of current interest-usually dealing with constitutional law or public law. We have also published a Digest of Recent Decisions. These cases have been selected with considerable care and faithfulness, by different members of the profession, from the reports of the West Publishing Company. Though some cases of value have necessarily been omitted or overlooked, the majority of the important decisions throughout the year will be found in the back part of our numbers for 1893. Whatever intrinsic merit of this Digest may have been, however, we confess that simple syllabi of cases, however important, have not proved attractive reading. We have, therefore, decided to attempt to improve this department in 1894, by combining it with the "Editorial Department" of the magazine. Each mouth we will review the cases and articles of interest which have appeared during the previous month. Instead, however, of skipping here and there, and noting now a case in equity, now a case in evidence, it is our intention to take each month the cases in one or two departments of the law, and write what we hope will prove an instructive and entertaining resumé of the principal cases which have appeared during the previous three or four months. Each month we will take up two or three departments of the law. This month, for instance, we have dealt with the recent cases on insurance, corporations, and constitutional law. Next month we hope to be able to deal with cases on other subjects. These editorial comments will not always be written by the editors of the magazine. We have a theory that a case on insurance should only be discussed by one who is familiar with the subject; that a case in equity should only be discussed by one who is familiar with equity, and that no one can be familiar with all branches of the law. The old editors take pleasure in stating that, as will be seen on the first page of the cover of this number, they have associated with themselves Mr. William Struthers Ellis of the Philadelphia Bar. EDITORIAL NOTES AND COMMENTS. A PAPER BY PROFESSOR THAYER. CONSTITUTIONAL LAW. We have received from Professor THAYER, of Harvard, an interesting pamphlet on the "Origin and Scope of the American Doctrine of Constitutional Law." The paper was read by the author before the Congress of Jurisprudence and Law Reform, held in Chicago, last August. Like all of Professor THAYER'S writings, this is of great value. It is, besides, because of the peculiar position taken, of exceptional interest to students of the subject. The origin of the doctrine that a court can set aside an act of the legislature which is repugnant to the constitution is pointed out in the first part of the article. This doctrine is peculiar to America, and is the keystone of our constitutional law. It is, as Professor THAYER says, the outcome of the fact that the colonial assemblies owed their existence to charters of the crown, and were prevented from transgressing these from fear of forfeiture. When the people of the several States took the place of the crown of Great Britain, the courts, after much controversy, settled down to the position that the constitution of a State, or of the United States, was paramount law, and that acts of legislation which disregarded this law were null and void. Professor THAYER traces, in an entertaining manner, how this position was gradually assumed. His article is, in fact, a mine of information on the subject, containing a complete reference to authorities and other articles. But the real raison d'etre of the article is to impress upon the reader the importance of a judge observing a particular canon of interpretation when he is called upon to decide whether a specific act of legislation is constitutional. The thesis maintained by Professor THAYER is that at alı times, and under all circumstances, a judge should never declare an act of legislation unconstitutional, unless the constitutionality is beyond reasonable doubt. To enforce his argument, he has collected apt sayings from judges of note and authority. In so far as the article tends to impress upon us the fact that one must not expect the courts to remedy bad legislation, the paper will receive no criticism here. One of the most prevalent, as one of the worst tendencies of our political life, is our growing disposition to look to the courts for the redress of bad or foolish legislation. But we conceive that the real object of the writer was to establish the thesis above stated. As an illustration of what he means by not setting aside an act of legislature as unconstitutional, unless there exists no reasonable doubt of its invalidity, he quotes Mr. Justice BLACKBURN, in Cap. & Count. Bank v. Nenty, 7 App. Cas., 741, where that justice, in deciding an appeal in libel, intimated that the question was not whether the words were libelous, but whether it was beyond reasonable doubt that they were not libelous, the trial court having so considered them. Professor THAYER says, "The ultimate question is not what is the true meaning of the constitution, but whether the legislation is sustainable or no!!" If this criterion of interpretation is sound it must be good in all cases. A judge must approach, according to Professor THAYER, all questions of constitutional law in exactly the same spirit; a spirit of desire to sustain the law when by any possibility it can be sustained. With this position we cannot agree. Suppose the question involves the power of the Federal government to do something which by no possibility will interfere with the reserved powers of the States, or the individual liberty of the citizen; suppose it is a question of whether the Federal government could erect a bank, as in the case of McCulloch v. Maryland. Here, it seems to us, that the attitude of the court should be that contended for by Professor THAYER. It should be one to sustain the law if possible, but not for the reasons which he gives. The law should be sustained if possible, because it is the powers of the government which has under its control the welfare |