The Limits of the Rule in Want v. Stallibrass.

An able discussion of the question whether a purchaser of land can recover his deposit where the vendor has an absolutely bad title and the purchaser does not make objection to the title within the time limited by the contract. The discussion is conducted by Frederick Edward Farrer and T. Cyprian Williams.

Labour Competition and the Law. Con. D. R. Chalmers-Hunt. This is a continuation of the paper on the same subject in the January Quarterly. The author upholds his side of the argument with much earnestness.

Specially Admissible Evidence.-Res Gesta. N. W. Sibley. The "Mysterious doctrine of the Res Gesta" is once more brought forward to be examined and defined, without, it would seem, depriving it of the right to the adjective awarded to it by Judge Bucknill.

The Case of Sutton v. Johnstone (1786).

A case in which a captain of the navy (English) brought suit against his commander for malicious prosecution. The commander had sent the captain to England for court-martial and the captain was acquitted. The development of the law, subsequent to this case, is traced and the right to bring such a suit is stated to be still doubted.

MICHIGAN LAW REVIEW.-April.

The Power to Appoint to Office: its Location and Limits. Floyd R. Mechem.

Here the question of the power of appointment as between the executive and legislative, or as being elective is discussed. The weight of modern opinion is conceived to be away from the Jeffersonian idea that nomination to office is an executive function, and toward the idea that it is a function of the legislature.

The Liability of the Custodian of Public Funds Lost Without His Fault. Gustav Stein.

The author shows that there has been a tendency to hold a person in charge of public funds responsible, not only for loss through his default or negligence, but also by "Act of God" robbery, theft or fire, but holds that there is now a "marked tendency toward the more lenient view" that the honest and faithful officer is not responsible in such cases.

YALE LAW JOURNAL.-May.

The Exercise of the Pardoning Power in the Philippines. Charles E. Magoon.

The paper deduces from given authorities the rule as to the exercise of the pardoning power, and makes the test the character of the offence and jurisdiction of the person of the offender. The facts given in the process of tracing the growth of the law on the question are well stated.

Must the Rejection of an Offer be Communicated to the Offeror? Clarence D. Ashley.

This question has a practical interest and many cases which might easily arise are here taken up and considered with a view to the enunciation of a principle by which they may be determined. The conclusion is that communication of the rejection of an offer to the offeror is requisite.

A Plea for a Modern Definition and Classification of Real Property. George P. Costigan, Jr.

An attempt to simplify the classification and definition of the word "property" from the standpoint of a teacher of the subject. The definition and classification arrived at by a careful process seem at first sight more simple than those they are intended to supplant. It is doubtful if they will prove so after being tested by experience.

The Decadence of Law as a Profession and Its Growth as a Business. Robert Treat Platt.

The incorporated company appears here as the enemy of the individual lawyer, much as a "trust" or the big department store appears as the enemy of the small business or shop in the business world. The author seems to look upon the condition as one to be accepted with philosophy.

OATIIS IN JUDICIAL PROCEEDINGS AND THEIR
EFFECT UPON THE COMPETENCY
OF WITNESSES.

Self-interest is perhaps the fundamental fact in human nature. Every man naturally seeks to promote the welfare of himself and his family before that of his neighbor. Unless he be largely influenced by considerations of morality or religion, he will, if necessary, tell a lie for that purpose. Even in a highly moral community of to-day, a man who will never misrepresent is extremely rare. In the primitive ages he was probably an unknown species. He is, exclusively, the product of education and religious training.

Of self-interest is born distrust of others. If a man will lie to serve his own interests, he will instantly suspect his neighbor of doing the same thing.

It is, therefore, a natural presumption and we can safely assume from the evidence that primitive man had little faith in the accuracy of facts, related to him by his fellows, if they in any way affected the interests of the relators. With the growth of his intelligence, however, he clearly realized that it is impossible for a well-ordered community to exist unless some reliance can be placed upon the words of the

members of that community. Some means, therefore, had to be devised, by which men could be bound to tell the truth and to perform their promises, so that there might be faith between them.

The evidence of the customs of prehistoric times must be found largely in survivals of those customs, particularly among primitive tribes as they now exist. Among uncivilized people in various parts of the world, a few ancient methods of binding a man to speak the truth are still extant. It is said that in Siberia, when a member of the wild tribe of Ostyaks is to be a witness, the head of a wild boar is brought into court. The Ostyak will then imitate the actions of the boar in eating and call upon wild boars in general to devour him if he does not speak the truth. The efficacy of the ceremony depends upon the fact that the witness believes he will fall a victim to the ferocity of a boar if he fails to keep his pledge.1

There are numerous similar customs which are related upon very good authority. They involve calling upon a beast, a mountain, the sun, a river or some similar thing, to witness the truth of one's words and to destroy him if they be untrue. Those who perform these ceremonies are said to implicitly believe that the thing invoked will avenge a falsehood by the destruction of the witness and perhaps of his descendants.2

These customs embody about all we know concerning the origin of "oaths." They were methods of securing a guarantee of truth. The one demanding the pledge would insist upon its being taken in the name of the being which, as he

1

"Travels in Siberia," by Erman. Vol. I, p. 492. This book was published in 1848. I do not know whether the custom still exists.

'In India some tribes, particularly the Santals, make assertions upon the skins of tigers, believing tigers will avenge a false statement by devouring them. Tyler on Oaths, p. 168; Encyclopedia Britannica, 9th ed., Vol. 18, p. 718; see also article “Oaths," by R. V. Rogers, 9 Green Bag, 57. Among the Egyptians assertions in the names of beasts were very common. Tyler, p. 145: Rollin's Ancient Hist., Vol. I, C. 2. In New Guinea it is said that some tribes still call the sun or mountains to witness, believing the sun will burn them or the mountains will fall upon them if they speak falsely. See authorities supra. Assertions made by calling to witness celestial bodies are also mentioned by Baron Puffendorf, chapter on Oaths.

thought, inspired the most awe in the breast of the swearer. This obviously would be some god or supernatural being in whom he believed and whom he feared. Oaths were consequently taken in a multitude of ways. They were very numerous among the Egyptians, Carthaginians, Greeks, Persians, Romans, Jews, etc., and in each case conformed to the prevailing religious belief.3

'In Egypt oaths were sworn in the names of various sacred beasts, as we have said, also by various mythical deities, Isis, Osiris, etc., and by the lives of their kings, who, particularly after their death, were thought to become invested with supernatural attributes. "By the life of Pharaoh” was a form of oath which the Jews borrowed from Egypt and for the use of which, with other "false oaths," they were afterwards rebuked. Gen. xlvi. 15, 16.

The Carthaginians swore by many gods and by sacred rivers and celestial bodies. Polybius reports a treaty of peace between Philip of Macedonia and the Carthaginians, which was concluded “in the presence of Jupiter, Juno and Apollo; in the presence of the demon of the Carthaginians, of Hercules and Iolaus; in the presence of Mars, Triton and Neptune; in the presence of all the confederate gods of the Carthaginians, and of the sun, moon and the earth; in the presence of the rivers, meads and waters; in the presence of all these gods who possess Carthage." This conglomerate mixture of Greek and Carthaginian gods was deemed to make the treaty solemnly binding on both parties.

The oaths of the ancient Greeks were as numerous as the sands of the sea. They swore separately and collectively by "all the gods in the calendar," by the "Waters of the Styx." Hesiod, Theog. 400. by the sacred altar, by the souls of the departed, Xenocrates, Epist. Attic. Lib. I, 16, by the ashes of their fathers, etc. Tyler on Oaths, C. 3. The Persians swore by the stars, Puffendorf, supra. Xenophon represents Cyrus as swearing in this wise: "I swear to thee, Lysander, by Mithra, never wher, in health to take my chief meal before I have discharged the duties of exercise." The Romans swore by their gods, by "the genius of the Emperor," by Hercules, etc. After the murder of Cæsar the Roman Senate expressly established an oath, "by the genius of Cæsar." Dio. Lib. XLIV. See also Tyler, C. 4. See further as to various forms of oaths in ancient countries; Tyler on Oaths; Potter on Oaths; “Oaths," 9 Green Bag. 57; Menage Divy, Laertius, Lib. II, section 40; Herodotus Lib. IV: Sozomenus, Lib. V. See also Bishop Sanderson De Jura. Obligat. Praelect 1, sec. 4; Ovid Amor. Lib. III, El. 3. 13. 14; Ovid Trist. Lib. V. El. 4. 45, 46; Atheneum Deipnosoph, Lib. IX. Cap. 2; Apollonins Lib. VI, Cap. 9; Virgil, Aeneas IX, v. 300; Apuleius De Deo Socrat; Pliny Lib. II, Epist. 20, N. 5, 6; Lysias Orat. Advers. Diagiton; Pietr. della Valle Itin., Part II, Epist. 1; Eusebius Eccle. Hist. Lib. IV, C. 15; Grammond Hist.