comprehends all property for taxation purposes, capital stock includes the entire property, real and personal, tangible and intangible, and assets on hand, as well as franchises of corporations and trusts so-called. When thus defined the value is an entirety, the tangible property may be taken from the total value, and the balance will be the value of the intangible property subject to taxation.21 And when intangible property is taxed, it is not an additional tax upon the same property, but upon intangible property which has not been taxed as tangible property.22 And in case of a corporation whose property is scattered throughout different States, by means of which business is transacted in each, the intangible property follows the tangible, and is situated wherever the tangible property is located, and where its work is done in the several States.23 That the trusts are overcapitalized is obvious, and their tangible property cannot be more than one-tenth of the whole value. But tangible and intangible property should be taxed. It matters not of what intangible property consists, whether privileges, corporate franchises, contracts or obligations, it should be taxed. It is enough that the property of the trusts, though intangible, exists, which has value and produces income, and passes current in the markets of the world. When the tangible property of the trust is scattered through different States, by means of which its business is transacted in each State, the situs is where the tangible property is located, and not where the home office of business is. Separate articles of tangible property are joined together by unity of ownership and by unity of use, thereby developing an intangible

20 Western Union Tel. Co. v. Massachusetts, 125 U. S. 530; Adams Express Co. v. Ohio, 166 U. S. 185; Walworth v. Harris, 129 U. S. 355; Adams Express Co. v. Kentucky, 166 U. S. 171; Postal Telegraph Co. v. Adams, 165 U. S. 688; Pittsburg, etc. R. R. Co. v. Backus, 154 U. S. 421; Pullman's Car Co. v. Pennsyl vania, 141 U. S. 18; Western Union Tel. Co. v. Tag. gart, 163 U. S. 1.

21 Henderson Bridge Co. v. Commonwealth, 99 Ky.

623.

22 Adams Express Co. v. Kentucky, 166 U. S. 171. 28 Adams Express Co. v. Ohio, 166 U. S. 185.

property which in value exceeds the aggregate of the separate pieces of tangible property, and should be taxed by the States. The basis of taxation should be determined by the value of the entire capital stock of the trust, and such other evidence and rules as will enable the State to arrive at the true value of the entire property of the trust within any of the States, in the proportion which the same bears to the entire property of the trust; and such value includes the proportionate part of the value resulting from the combination of the means by which the business is carried on. If the intangible property was thus taxed, it would bring to light the real value of the capital stock of trusts, and thereby be a means of publishing to the world the fictitious over-capitalization of trusts, and place them on a basis founded upon the real value of their entire property. The federal constitution places no restrictions upon any State to abridge its right to tax at their full value all the instrumentalities used for commerce within its jurisdiction. And there is nothing in the limitations of the constitution which restrains a State from taking intangible property at its real value existing within its territory.24 To illustrate this principle take an express company. Thus, where an express company's tangible property is worth $4,000,000, and its intangible property $12,000,000, its valuation for taxing purposes is $16,000,000, to be prorated among the States where the express company has tangible property in use, a unity of use for the convenience of pecuniary profit. 25 The same system may be constitutionally applied to trusts.

Conclusion.-1. All acts, whether by legislation of States, combination of corporations, or by contracts of private individuals, which interfered directly with interstate commerce, can be regulated under the Act of July 2, 1890, so there is no need of an amendment. 2. All combinations within a State which form a monopoly in restraint of trade may be regulated by the anti-trust acts of the several States. 3. By a constitutional taxation of intangible property, the interstate trusts can be compelled to divulge the real value of their property. Bloomington, Ill.

DARIUS H. PINGREY.

24 Adams Express Co. v. Ohio, 165 U. S. 194. 25 Adams Express Co. v. Ohio, 165 U. S. 194; State v. Jones, 51 Ohio St. 492.

CRIMINAL LAW - PRINCIPAL AND AC

CESSORY.

STRAIT v. STATE.

Supreme Court of Mississippi, April 20, 1900.

Where prosecutors had reason to believe their of fice had been entered by defendant, and hired a detective to investigate the matter, and, under the pretense of getting a bundle he had left, the detective borrowed defendant's key, and entered the office, accompanied by the defendant, when they were immediately arrested, a conviction of the defendant for burglary was improper, because his principal was not guilty, since he entered the office under the license of the prosecutors.

TERRAL, J.: Joshua Strait, a colored boy, was indicted in the circuit court of Lauderdale county of burglary in breaking and entering the law office of Ethridge & McBeath with intent to steal. Ethridge & McBeath were attorneys at law at Meridian, Miss., and, having a belief that their office had been often entered by some person, and having a suspicion that the defendant was such person, one or both of the prosecutors requested Green Morton to trace up the matter. Strait was the office boy at a neighboring office, and had the keys thereto of his master. Green Morton, in laying a snare for the defendant, pretended to him that he had left a bundle in the office of Ethridge & McBeath, and received from Strait the key used by him in his employment, and with it opened the office of Ethridge & McBeath, and entered the same, and the defendant, Strait, also entered with him, and, being immediately set upon, they were arrested, and, the defendant being indicted and convicted of burglary, he appeals. Green Morton, in endeavoring to entrap the defendant, and in getting from him the key with which he opened the office of Ethridge & McBeath, and in leading the defendant into said office, was acting at the instance of the prosecutors, either as a decoy or as a detective, and in either case he was operating under the license of the owners, and could not have been guilty of an unlawful act; and, because Morton was not guilty of burglary, the defendant could not be guilty of burglary in entering the office at the instance and by the act of Morton. Green Morton himself opened the door of the office of Ethridge & McBeath, and, unless he is guilty of burglary as the principal felon, the defendant cannot be guilty of crime. At common law the actual doer of an illegal act amounting to felony was called a principal in the first degree, and another being with him to aid or assist in the commission of the act is denominated a principal in the second degree, and a principal in the second degree could only be guilty of the crime committed by the principal in the first degree. It is plain that Morton is not guilty of burglary, because he was acting at the instance of the prosecutors, and he was expected by the prosecutors to use his own judgment in luring the defendant into a trap to be set for him.

Whart. Cr. Law, § 117; U. S. v. Libby, 1 Woodb. & M. 221, Fed. Cas. No. 15,597. In 1 McLean, Cr. Law, § 118, it is said: "The only question in the case of decoys is as to whether defendant has committed a criminal act. Of course, if he has joined with one who pretends to be a confederate, but in reality is acting as a detective, and therefore has no criminal intent, he will not be criminally liable for acts done by the detective, although present to aid and assist; for, while such presence and aid would make him a confederate in the case of a real crime, it cannot render him guilty where no real crime is committed. Thus, it is held that if, in burglary, an officer or a servant, under the instructions of the owner, admits the intended burglar to the house, pretending to be in collusion with him, there is no burglary committed." Maule, J., so ruled in Reg. v. Johnson, Car. & M. 218, 41 E. C. L. 123. Ten of the twelve judges of the exchequer chamber so ruled in Dannelly's case, 1 Russ. & R. 310. And this is the American doctrine. Love v. People, 160 Ill. 501, 43 N. E. Rep. 710, 32 L. R. A. 139; People v. McCord, 76 Mich. 200, 205, 42 N. W. Rep. 1106; Connor v. People (Colo. Sup.), 33 Pac. Rep. 159, 25 L. R. A. 341. The defendant was let into the office of the owners by a decoy operating at their instance, and, however reprehensible the act be morally, he is not guilty of burglary. His conviction was wrongful. The verdict and judgment are set aside and reversed; and a new trial is awarded.

NOTE.-Recent Decisions on the Law Pertaining to Principal and Accessory in Criminal Cases.—A person cannot be convicted as a principal for aiding the person who actually committed the crime, unless he is in a position to render, if necessary, some personal assistance, and desired to have the crime committed. State v. Valwell, 66 Vt. 558, 29 Atl. Rep. 1018. Where one is accused of aiding and encouraging another in the commission of a crime, it need not be shown that the crime was committed in pursuance of an understanding between them. Howard v. Commonwealth (Ky.), 27 S. W. Rep. 854. A person present at the commission of a murder, and aiding, either by keeping guard, or by counseling or encouraging the commission of the crime, is equally guilty with the person who delivers the mortal blow. People v. Repke (Mich.), 61 N. W. Rep. 861. Where three persons form a design to kill a person, and one of them pro. vokes a difficulty with him to furnish a pretext for killing him, he is equally guilty with the other two who inflict the wounds. State v. Paxton (Mo.), 39 S. W. Rep. 705. In a trial for murder, an instruction that if defendant was present for the purpose of act ual assistance as the circumstance might demand, and the principal was encouraged to take the life of the deceased by the presence of defendant, then defendant aided and abetted in the killing of deceased, is properly given. Singleton v. State (Ala.), 17 South. Rep. 327. It appearing that defendant and W were horse thieves, who had determined to resist arrest to the death, and that in arresting them deceased was shot, it is immaterial that W, and not defendant, fired the shot. English v. State (Tex. Cr. App.), 30 S. W. Rep. 233. When two persons unite in bringing about a quarrel with a third person, which results in one of

them assaulting him, each of the two is a principal. Williamson v. State (Tex, Cr. App.), 29 S. W. Rep. 470. An accessory before the fact to a felony should be prosecuted as a principal. State v. Golden (Wash.), 39 Pac. Rep. 646. All persons who, being present, assist or abet in the commission of murder, may be prosecuted as principals. Hill v. State, 42 Neb. 503, 60 N. W. Rep. 916. Under an information charging defendant with procuring, aiding, and abetting another to commit an assault with intent to wound, defendant may be convicted of assault and battery as principal. Wagner v. State, 43 Neb. 1, 61 N. W. Rep. 85. Under Comp. Laws, sec. 7260, abolishing the distinction between principals and accessories before the fact, it is proper to charge as principal one who counsels and directs a murder. State v. Kent (N. Dak.), 62 N. W. Rep. 631. Under Cr. Code, div. 2, sec. 2 (Rev. St. ch. 38, sec. 274), which declares that an accessory before the fact "shall be considered as principal and punished accordingly," an indictment which charges that one man did acts which constitute murder, and that the defendant then and there feloniously incited him to commit such murder, without alleging that defendant committed the murder, is bad. Fixmer v. People, 153 Ill. 123, 38 N. E. Rep. 667. One who had agreed with others to commit a criminal act, who is not present at the time of its commission, cannot be considered a principal, unless he was, when the act was committed, performing some act in fur. therance of the common design. Tittle v. State (Tex. Cr. App.), 31 S. W. Rep. 677. Where two or more persons are charged in an information with premedi tated murder by shooting, and the evidence shows that the one on trial did not do the killing, but abetted the crime, the information will be sufficient as to him. State v. White, 10 Wash. 611, 39 Pac. Rep. 160. Where, by the same indictment, two persons are charged with murder in the first degree, the conviction of one of murder in the second degree does not probibit the trial of the other for the crime charged. State v. Lee (Iowa), 60 N. W. Rep. 119. One who counsels and procures another to commit a murder may be convicted of a higher degree than the evi dence shows the other to be guilty of. State v. Gray (Kan.), 39 Pac. Rep. 1050. As there are no accesso ries in misdemeanors, those whose conduct would constitute them accessories before the fact, if the prin cipal offense were a felony, are, if it be a misdemeanor, guilty as principals. Wagner v. State, 43 Neb. 1, 61 N. W. Rep. 85. On a prosecution for assault, where there is evidence that defendant was an accessory, it is error to instruct that, if defendant was present and "ready" to aid or abet the principal in the assault, he is guilty as principal. Elmore v. State (Ala.), 20 South. Rep. 323. On a prosecution for assault with intent to kill, where there is evidence that defendant was an accessory, an instruction that one is guilty as principal of an offense committed solely by another, when he conspired with the other to commit it, and that the conspiracy need not be shown by positive, but may be shown by circumstantial, evidence, is proper. Elmore v. State (Ala.), 20 South. Rep. 323. A conviction under an indictment charging defendant with having performed an operatin on which prouced an abortion was sustained by evidence that defendant procured another to actually perform the operation in his presence, while he watched for intruders, to prevent interruption. Dixon v. State, 46 Neb. 298, 64 N. W. Rep. 961. That defendant, with other boys, invaded prosecutor's premises, drove prosecutor's companion to the rear of the house, and detained him there while two others robbed prosecutor, is suffi

cient to show that defendant aided in the robbery, so as to warrant his conviction therefor. State v. O'Keefe (Nev.), 43 Pac. Rep. 918. In a prosecution for as sault with a deadly weapon upon J, an instruction is proper that if defendants L and M were present at J's house, telling a third defendant what to say to him, to call him a mill burner, etc., they would be guilty. State v. Jones (N. Car.), 24 S. E. Rep. 493. Where a murder was committed by means of an explosion of dynamite, one who made the preparations by laying the wires and placing the battery and doing all the preliminary work, and in whose presence and with whose knowledge the current was set in motion by another, is guilty. Commonwealth v. Miller (0. & T.), 8 Kulp, 85. An instruction that if a man named C planned a burglary, and the defendant and another agreed to assist therein, and all were present and went into the house in furtherance of the plan, each would be guilty of such burglary, is properly given where defendant has confessed to the facts therein stated, and the burglary has been proved aliunde. Attaway v. State (Tex. Cr. App.), 34 S. W. Rep. 112. Where parties act together in the commission of an offense, in pursuance of a common intent, and in pur suance of a previously formed design, they are all alike guilty, whether all were actually present when the offense was committed, or not. McDonald v. State, 34 Tex. Cr. Rep. 556, 35 S. W. Rep. 286. A person present at the time an assault was made upon prosecutor by a third person, but who, by neither act, word, nor gesture, aided the assailant in the assault, cannot be convicted of the assault. Schribe v. State (Tex. Cr. App.), 35 S. W. Rep. 375. An indictment for aiding an officer of a bank in making false entries, etc., is not defective because it charges the principal with having made the entries with intent to defraud the bank, an also with intent to deceive examining agents, whereas it merely charges the aider with an intent to deceive such agents; for it is immaterial that the principal may have had several intents, if both prin cipal and aider were actuated by the criminal intent to deceive such agents. Coffin v. United States, 162 U. S. 664, 16 Sup. Ct. Rep. 943. Const. art. 1, sec. 11, giving an accused the right to demand the nature and cause of the accusation against him, does not render unconstitutional Hill's Ann. Laws, sec. 2011, abolishing the distinction between principal and accessory before the fact, nor prevent accused who procured the commission of a homicide, but who was not present, from being convicted on an indictment merely charging him with the commission of the overt act. State v. Steeves (Oreg.), 43 Pac. Rep. 947. Under Rev. St. 1889, sec. 3944, providing that every person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessory before the fact, shall, on conviction, be adjudged guilty of the offense in the same degree as a princi. pal in the first degree, the indictment may either allege the matter according to the fact, or charge the principal and the accessory as principals in the first degree. State v. Schuchmann (Mo. Sup.), 33 S. W. Rep. 35, 34 S. W. Rep. 842. Though the distinctions between accessories before the fact and principals are abolished, an indictment first setting out the guilt of the principal offender, and then charging that, "before the commission of said felony, defendant did" "counsel, aid, incite, and procure," said principal to commit the felony, is unobjectionable. State v. Gleim, 17 Mont. 17, 41 Pac. Rep. 998. Under Rev. St. 1874, p. 393, sec. 274, making one who "stands by, and aids, abets, or assists" in the perpetration of a crime, an accessory, and punishable as a principal, the mere

presence of a defendant when a homicide was com mitted by another, or even his consent thereto, will not authorize his conviction as a principal, where it is not shown that he said anything or did any act to aid, abet, or assist in its commission. Jones v. People, 166 Ill. 264, 46 N. E. Rep. 723. Where four defendants were charged with assault, an instruction that if any of defendants were present at the time of the assault, for the purpose of giving aid if necessary, they were guilty, was not error. Anderson v. State (Ind. Sup.), 46 N. E. Rep. 901. An aider and abettor of a burglary, though he does not come within 40 feet of the house, is equally guilty with one who enters. State v. Pearson, 119 N. Car. 871, 26 S. E. Rep. 117. Where two persons are present, who are acting in concert for an unlawful purpose, and a person is killed by one of them, in pursuance of the common designs, it matters not which one fires the fatal shot. State v. Cannon (S. Car.), 27 S. E. Rep. 526. The evidence showed that defendant and three others were all engaged in the robbery; and that, while two others did the work, defendant and his companion were at hand, ready to give assistance, should occasion require it. Held, that it was not error to charge that all persons who act together in committing an offense are principals; that they may act together, whether bodily present or not, if they act under an agreement to commit an offense, and it was committed in pursuance of a common intent and previously formed design, each party performing his part, which was necessary to the completion of the offense. Colter v. State (Tex. Cr. App.), 39 S. W. Rep. 576. Under Code, sec. 4314, which ab. rogates the distinction between an accessory before the fact and a principal, making both principals, it is error to charge that a defendant who did not actually commit the act constituting the crime, which was committed by another is guilty, if at all, of whatever offense the evidence shows such other to have committed. State v. Smith (Iowa), 69 N. W. Rep. 269. A person who conspires to commit robbery is guilty of a murder resulting from the attempted perpetration of the crime, though the killing was done in the ab sence of himself and his co conspirators, by persons employed by the latter to effect the robbery. Isaacs v. State (Tex. Cr. App.), 38 S. W. Rp. 40. One of several persons who enter into an agreement to steal horses generally cannot be convicted as a principal in the theft of a horse taken by other parties to the agreement, he having refused to have anything to do with it. Sessions v. State (Tex. Cr. App.), 38 S. W. Rep. 605. Where two persons are indicted for murder, one as principal in the first degree, and the other as principal in the second degree, the latter may be convicted of murder, although the former has been convicted of voluntary manslaughter only. Bruce v. State (Ga.), 25 S. E. Rep. 760. One charged as a principal in a felony may be convicted on evidence of a conspiracy to commit the crime, and an actual participation in the act constituting the crime. Reed v. State (Ind. Sup.), 46 N. E. Rep. 135. Since Cr. Code, sec. 1, relating to accessories before the fact, merely declares the common law, one charged as an accessory before the fact cannot be convicted as a principal. Casey v. State, 49 Neb. 403, 68 N. W. Rep. 643. Under Rev. St. sec. 6804, providing that one who aids and abets the commission of an offense may be "prosecuted" as if he were a principal offender, one aiding and abetting in the commission of a homicide may be indicted with the principal. Jones v. State, 7 Ohio St. Dec. 305, 14 Ohio Cir. Ct. Rep. 35. Where, in a prosecution for sale of a lottery

ticket, it appears that defendant kept a place where the sale of tickets was advertised, and that at the time of the sale he and his brother were waiting on the purchaser, it is immaterial whether defendant personally sold the ticket, since Pen. Code, art. 75, provides that when an offense is actually committed by one or more persons, and others are present, knowing of the unlawful intent, and assist those actually engaged in the unlawful act, such persons are principal offenders. Kaufman v. State (Tex. Cr. App.), 38 S. W. Rep. 771. Where four persons, without any common understanding that they would do whatever might be necessary to avoid arrest, resisted an officer, and one of their number shot him, but not fatally, all of them were not guilty of an assault with intent to murder, even though the one who fired the shot did so with intent to kill. State v. Taylor (Vt.), 39 Atl. Rep. 447. Mansf. Dig. sec. 1505, defining an accessory as one "who stands by, aids, abets, or assists" in the perpetration of a crime, one who is thus indicted as an ac cessory is charged as a principal in the second degree under the common law, and proof that his principal in the first degree was convicted is irrelevant and im. material. Williams v. United States (Ind. Ter.), 45 S. W. Rep. 116. If defendant aided and abetted in the killing, he was a principal in the second degree, and not an accessory. Tudor v. Commonwealth (Ky.), 43 S. W. Rep. 187. One who bribes a duly supbœnaed witness to absent himself from the trial cannot be convicted, under Gen. St. sec. 6310, which makes the abettor of a crime punishable as a principal, taken in connection with section 6386, which makes it a felony for a witness to receive a bribe for absenting himself from a trial. State v. Sargent (Minn.), 73 N. W. Rep. 626. One who was present, aiding, abetting, and assisting another while he committed an assault, though not actively participating, is particeps criminis. State v. Klein (Wash.), 53 Pac. Rep. 361. Exclamation of C to G to "catch him and kill him," referring to B, with whom C was having some words, could have no effect to establish an agreement between C and G to effect an unlawful purpose, so as to make C answer. able for death of W, killed by G striking him with a club while C and B were fighting. State v. May, 142 Mo. 135, 43 S. W. Rep. 637. An information which charges one with embezzlement by aiding and abetting another in the commission of such offense does not charge defendant as an accessory before the fact. State v. Rowe (Iowa), 73 N. W. Rep. 833. Code 1873, sec. 3908, provides that public officers who shall con. vert to their own use money intrusted to them shall be guilty of embezzlement. Section 4314 abrogates the distinction between an accessory before the fact and a principal, and all persons concerned in the com. mission of a public offense must be indicted and punished as principals. Held, that one who advises a county treasurer to commit the crime of embezzlement may be a principal, as having aided and abetted in its commission, though he would not have been a principal if he had taken the money. State v. Rowe (Iowa), 73 N. W. Rep. 833. Pen. Code 1895, art. 86, defines an accessory as one who, knowing that an offense has been committed, conceals the offender, or gives him any other aid, in order that he may evade arrest or trial, or the execution of his sentence. Held, that the person charged as accessory must have given some personal help to the offender; and the naked fact that one received stolen property, knowing it had been stolen, would not constitute the receiver an ac cessory in the burglary. Street v. State (Tex. Cr. App.), 45 S. W. Rep. 577. The death of the principal before indictment is no obstacle to the prosecution.

and punishment of one charged with aiding and abetting an officer, clerk, or agent of a national bank to abstract, misapply, or embezzle the funds thereof, in violation of Rev. St. sec. 5209, which makes such offense a misdemeanor. Gallot v. United States (U. S. C. C. of App.), 87 Fed. Rep. 446. Before one can be found guilty as accessory before the fact, the guilt of the principal must be established, and, for the purpose of establishing the principal's guilt, confessions made by him are competent in the trial of one accused as accessory. Brooks v. State (Ga.), 29 S. E. Rep. 485. Under Hill's Ann. Laws, secs. 1289, 2011, abrogating the distinction between principals and accessories, and providing that persons, whether committing a crime or aiding or abetting in its commission, shall be indicted and tried as principals, the conviction of one person charged as principal in the commission of a crime does not operate as an acquittal of another separately charged as principal in the commission of the same crime. State v. Branton (Oreg.), 56 Pac. Rep. 267. A charge that defendants are principals if they acted together in committing an offense accord. ing to a previously formed design is erroneous; the statutes requiring principals to be present or to do some act in furtherance of the common design at the time of the commission of the offense. Wright v. State (Tex. Cr. App.), 48 3. W. Rep. 191. Under Pen. Code, sec. 29, providing that a person concerned in the commission of a crime, whether he directly commits the act or aids and abets in it, and whether pres ent or absent, and a person who directly or indirectly counsels or procures another to commit a crime, is a principal, actual presence at the commission of a crime is not necessary to constitute one a principal. People v. Winant, 53 N. Y. S. 695, 24 Misc. Rep. 361. To be guilty as a principal, a person must both aid and abet, under Pen. Code, sec. 971, declaring guilty as principals all persons who aid and abet in the commission of a crime. People v. Compton (Cal.), 56 Pac. Rep. 44. The effect of Cr. Code, sec. 1, which provides that one who shall aid, abet, or procure any other person to commit a felony shall be punished in the same manner "as the persons who committed the felony," is to make such aiding and abetting a substantive and independent crime. Oerter v. State (Neb.), 77 N. W. Rep. 367. A charge that if defendant and another searched for cattle pursuant to a conspiracy to steal them, and the other found them, and drove them to where defendant was, and they then took them together, then the act of such other in taking the cattle would be defendant's act, is erroneous; Pen. Code 1895, arts. 74-78, requiring a person to do some act to aid or encourage another in the commission of an offense at the time it is committed, in order to make him a principal. Bell v. State (Tex. Cr. App.), 47 S. W. Rep. 1010. Under Code 1873, sec. 4314, abolishing the distinction between principals and accessories before the fact, and making aiders and abettors guilty as principals, a conviction of murder as a principal is sustained by proof that the killing was by a third person, in pursuance of a conspiracy with accused. State v. Smith (Iowa), 77 N. W. Rep. 499.

inem, hardly worthy of the forum. To the philo. sophic mind, the doctrine of stare decisis is a potent safeguard against the vagaries of human nature. If every judge were at full liberty to decide according to his views at the time, regardless of what went before, a boil on the neck or the pleasant sensations of a good dinner would control. The personal equation is powerful, even on the bench. The conservatism of the law is the most vital element of social order. It is far more important to the community to have the law settled, even wrongly, than to have uncertainty which breeds confusion and brings the law into contempt. Evils that can be located and measured can be cured by legislation; and even courts, when fully satisfied that a precedent is evil or has become inap. plicable through change of conditions, do not hesitate to depart from it. Since your correspondent cites the Supreme Court of the United States as upholding precedents discarded in other countries, it may be well for him to consider the action of that court in two later instances. In the sugar duty case, the court uphold, upon the doctrine of stare decisis, what it regarded as a faulty construction of the rev. enue law, because this construction had been adopted by the public and the administering officers, and had become so far settled, generally understood and acquiesced in, that to disturb it would bring greater evils-a case where the remedy was perhaps worse than the disease. In the matter of patent reissues, coming up the same term, the same court did not hesitate to discard the doctrine of stare decisis and overturn the construction of the statute settled by its own and the adjudications of federal courts for fifty years previously. These instances at least show that the supreme court is not wedded to the doctrine of stare decisis, but rather indicate a tendency toward the evils which a more consistent application of the doctrine would prevent. The doctrine, is, at best, not so much a hard and fast rule as a guide; and it should be remembered that it is not the function of courts to make law but to ascertain and administer it. There may be hardship in individual cases in apply. ing a fixed rule, but obedience to law is itself a hardship when the law is unsettled and doubtful-and all thoughtful men will admit that the latter is the greater evil. LEWIS M. HOSEA.

Cincinnati, Ohio.

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