Page:Harvard Law Review Volume 12.djvu/379

REVIEWS. 359 Trusts — Breach of Trust — Wetmore v. Porter. — In an action by an executrix upon a promissory note, heid, that evidence is inadmissible tending to show that the money for which this note was given was loaned by the executrix in a col- lusive attempt to defraud the estate. Atwood v. Lister, 40 Atl. Rep. 866 (R. I.). The question, whether a trustee who has wrongfully disposed of trust property may maintain an action for its recovery as trustee has given rise to much difference of opinion. The decision in the principal case is in accord with the weight of authority. It is based upon the reasoning in Wetmore v. Porter, 92 N. Y. 76. See 12 Harv. Law Rev, 133. REVIEWS. The Commerce Clause of the Federal Constitution. By E. Parmalee • Prentice and John G. Egan. Chicago: Callaghan & Co. 1898. pp. Ixxv, 386. Shifting tendencies and the general development of law — hard as they may be to treat in a condensed work — cannot with any propriety be left out of an exhaustive special treatise. This fact the authors of the present work realized, and they have carefully carried out the treatment of their special subject, historically and analytically. The book em- bodies an effort, in the main successful, to take the point of view of the Supreme Court of the United States in regard to the so-called "Com- merce Clause," to show how this point of view has changed with time, and how it has varied in the manifold different classes of cases involving the power to regulate commerce. The aim of the framers of the clause is shown in its true light. They meant to give Congress power to prevent one State from enacting tariffs discriminating against the others and from passing navigation laws. No one thought the federal control was made exclusive ; in fact a provision to make it so was struck out by the convention. All this the authors concede. They justify the doctrine of exclusive federal control by the general development of the country in ways wholly uncontemplated, ac- centuated by a change in the relation of the States after the civil war. p. 35. These are the best explanations which the school of Marshall adopt. To the school of Kent and Taney they are not so convincing. In stating the modern rule, that the control of commerce belongs exclusively to Congress in all matters admitting of uniform treatment, the authors are right, p. 27 ; but they make an unfortunate shp in assuming that this was the rule laid down by Mr. Justice Curtis in Cooley v. Wardens of the Port of Philadelphia, 1 2 How. 299. The doctrine of that case was that federal control is exclusive in matters which admit only of uniform treatment. The misconception of that rule has been shared by the courts. The consequent broadening of the exclusive power restricted the States to such an impossible extent that considerable sophistry had to be evolved in support of some State laws by means of narrowing the definition of a "regulation" of commerce. Hence a drift back towards a broader rule. Though the cause is ignored, the effect is noted, p. 206. Indeed, the authors are somewhat inclined to admit the difficulty of say- ing that all the State regulations of carriers which have been upheld are not regulations of commerce, p. 164. Yet, granted the modern rule with its modifications, it is very justly treated in connection with a great number of different circumstances.