REVIEWS. 439 now have had but a fragmentary expression. First is the point that our rules of evidence are neither logical nor wholly reasonable, but are, with their virtues and vices, true offsprings of the trial by jury. They are rules of convenience introduced per doubt del lay gents. Trial by jury, then, must first be understood; and in a complete and thorough manner the author traces it, step by step, illuminating his work with illustration. From the old trials, where the jurors knew the events they were trying, the growth of the conception of witnesses is traced, until rules became necessary for the giving of the testimony. Old rules are called on to explain what seem now to be anomalies; and among these anomalies is shown the so-called Best Evidence Rule. History, from this point of view, is now written for the first time, and written in a masterly and luminous style. A second and equally important preliminary step is the discrimination between what is and what is not a rule of evidence. This leads to dis- cussing Burden of Proof, Presumptions, carefully and conclusively, but from an unchanging standpoint — they do not involve rules of evidence. Especially full is the treatment of the various rules of law misnamed the parol evidence rule, and much time is devoted to their application to wills. It is impossible to go into the mooted question as to whether the Court, in construing a will, really looks to the testator's intention, as the author believes, or whether it holds intention wholly irrelevant. This question, at all events, is not one of the law of evidence, except so far as it deals, under Professor Thayer's views, with the rule excluding, in most cases, direct statements by the testator of his intention. Having cleared the ground of this mass of spurious undergrowth, the author is ready to treat of the law of evidence proper, and the preliminary gives good promise for the further work. But in the last chapter he pauses to glance over the law of evidence as a whole, points out its fail- ings, and suggests a remedy. This he finds in the discretion of the judge. A recognition of such increased judicial power may be hard to obtain in this country; but the wisdom of a change along this line is clear. Legis- lative reform of law is often a bungling affair, not likely to be carried out with the nicety which the present subject requires; and no one who has seen the workings of an English nisi prius court, in which the judge has wide discretion and debates on points of evidence are rare, can doubt that this power, wielded by competent hands, could accomplish beneficial results. J. G. p. Lectures on the Fourteenth Article of Amendment to the Con- stitution OF the United States. Delivered before the Dwight Alumni Association by William D. Guthrie. Boston: Little, Brown & Co. 1898. pp. xxviii, 265. This series of lectures is interesting, and the treatment of the subject scholarly. The history of the Fourteenth Amendment is told, and the scope and meaning of its terms are carefully discussed. Particularly satisfactory is the treatment of "due process of law." Full weight in that connection is properly allowed to the general usages of mankind, and great discretion is conceded to belong to legislatures, so long as their power is not arbitrarily used. It may well be regarded as an error to sup- port the decision — C. B. b^c. R. R. v. Chicago, 166 U. S. 226 — that
