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of the nature of a judicial decision was used with effect in the case of Kuhn v. Fairmount Coal Co., 215 U. S. 347. For the reader, therefore, who must economize time and effort in his pursuit of jurisprudence studies, we would advise skipping over the first 150 pages (except possibly Caps, iii, v).

Much water has run under the bridge since the present century began, and if this book were appearing now in first edition we should charge it with lack of modernity. Jhering has been dead thirty years. Savigny quit the stage sixty years ago. Many new problems in jurisprudence have come to the front, and, accordingly, jurisprudence cannot now be treated as if the old school makers alone were to be reckoned with. Gray's book must be counted as one of the old period, but its excellence is such that it has deserved to be revived in a new edition not merely as an act of filial piety or out of respect for the high character of its author but on its own merits.

A. K.

ARTICLES IN PERIODICALS New YORK COMMERCIAL ARBITRATION. Julius H. Cohen. Yale L. Jour.

XXXI 147. CONSTITUTIONALITY OF THE FUGITIVE SLAVE Acts. Allen Johnson. Yale L.

Jour. XXXI 161. WAR CRIME TRIALS AT LEIPZIG. George G. Battle. Va. L. Rev. VIII 1. SAFE DEPOSIT COMPANIES. Arnold R. Boyd. Va. L. Rev. VIII 44. EFFECTIVE AND LAWFUL AVOIDANCE OF Taxes. John H. Sears. Va. L. Rev.

VIII 77. THE INNS OF Court. Charles M. Hepburn. Va. L. Rev. VIII 93. CONTRACTS OF ATTORNEYS WITH CLIENTS. Howard R. Bayne. Va. L. Rev.

VIII 103. SOME Early SUPREME COURT (U. S.] Cases. David H. Miller. Va. L. Rev.

VIII 108. IRRESPONSIBLE GOVERNMENT BY CONSTITUTIONAL AMENDMENT. George S.

Brown. Va. L. Rev. VIII 157. THE GENERAL WELFARE. Harry St. G. Tucker. Va. L. Rev. VIII 167. BILLS FOR ACCOUNT. William M. Lile. Va. L. Rev. VIII 203. CHANGING FOUNDATIONS OF GOVERNMENT. Nicholas Murray Butler. Am.

L. Rey. LVI 1. NEED FOR NEW PREMISES IN THE LAW. E. F. Albertsworth. Am. L. Rev.

LVI 17. INTERPRETATION OF THE CONFISCATORY PHASES OF THE MEXICAN Consti

TUTION OF 1917. R. B. Gaither. Am. L. Rev. LVI 39. PEACE ON PUBLIC UTILITIES. Charles J. Turck. Am. L. Rev. LVI 56. CITIZENSHIP OF CORPORATIONS. Cleveland Cabler. Am. L. Rev. LVI 85. SURVEY OF THE BUSINESS Trust. Frederick A. Thulin. Am. L. Rev. LVI

177. PSYCHOLOGY OF A Law-Suit. Harry F. Payer. Am. L. Rev. LVI 187. FEDERAL EQUITY RULES. Wallace R. Lane. Am. L. Rev. LVI 206. How FUNDAMENTAL INTERNATIONAL LAW IS TO BE DISCOVERED. Jackson H.

Ralston. Am. L. Rev. LVI 236.
Class LEGISLATION VIA SHERMAN LAW. Raymond G. Brown. Am. L. Rev.

LVI 250.
LEGAL ETHICS. Wm. H. Taft. Bost. U. L. Rev. II 3.

MELVILLE M. BIGELOW AND THE LEGAL PROFESSION. Charles W. Eliot. Bost.

U. L. Rev. II 17. THE CONSTITUTION IN THE WAR. Harold M. Bowman. Bost. U. L. Rev.

II 22. TREASON IN MODERN FOREIGN Law. Thomas R. Robinson. Bost. U. L.

Rev. II 34. JOHN Bassett MOORE. Frank E. Hinckley. Calif. L. Rev. X 103. POLITICAL WATER RIGHTS. Samuel C. Wiel. Calif. L. Rev. X 111. COMMUNITY OBLIGATIONS. Alvin E. Evans. Calif. L. Rev. X 120. First HALF-CENTURY OF THE CALIFORNIA CIVIL CODE. Maurice E. Harrison.

Calif. L. Rev. X 185. THEORY OF PLEADINGS IN CODE States. E. F. Albertsworth. Calif. L. Rev.

X 202. PARLIAMENTARY DIVORCE. Bram Thompson. Can. L. Times XLII 65. PURCHASE FOR VALUE AND ESTOPPEL. Henry W. Ballantine. Can. L. Times

XLII 81. FROM CONTRACT TO STATUS. E. F. Albertsworth. Can. L. Times XLII

102. NATIONALS WITHOUT A Nation : New York TRIBAL INDIANS. Cuthbert W.

Pound. Col. L. Rev. XXII 97. ACCESSION OF CHATTELS. Earl C. Arnold. Col. L. Rev. XXII 103. CORPORATE REORGANIZATION. Robert T. Swaine. Col. L. Rev. XXII 121. SUPREME COURT DECISIONS ON THE COMMERCE CLAUSE AND STATE TAXING

POWER. Thomas R. Powell. Col. L. Rev. XXII 133. THE LITERATURE OF Law. John W. Salmond. Col. L. Rev. XXII 197. RATE MAKING AND REVISION OF THE PROPERTY CONCEPT. Robert L. Hale.

Col. L. Rev. XXII 209. Rate OF EXCHANGE IN LAW OF DAMAGES. Edward Gluck. Col. L. Rev.

XXII 217. DOCUMENTARY LETTERS OF CREDIT. Carl A. Mead. Col. L. Rev. XXII 297. LAW OF ADOPTION. John F. Brosnan. Col. L. Rev. XXII 332. Trusts RECEIPTS AS SECURITY. Karl T. Frederick. Col. L. Rev. XXII 395. IMPOSSIBILITY OF PERFORMING CONDITIONS PRECEDENT, Arthur L. Corbin.

Col. L. Rev. XXII 421 COMPULSORY CIRCULATION OF FRENCH BANKNOTES. René Demogue. Col. L.

Rev. XXII 430. SPIRITUALISM AND CRIME. Blewett Lee. Col. L. Rev. XXII 439.. NEGLIGENCE AND PROXIMATE CAUSE. Fred S. Reese. Cornell L. Q. VII 05. LIMITED LIABILITY IN BUSINESS Trusts. Robert S. Stevens. Cornell L. Q.

VII 116. THE PUBLIC DEFENDER. James Bronson Reynolds. Jour. Crim. L. &

Crim. XII 476. DEFENDER IN CRIMINAL Cases RECOMMENDED IN CLEVELAND. Reginald Heber

Smith. Jour. Crim. L. & Crim. XII 490. THE FUNCTION OF CRIMINAL PLEADING. Robert W. Millar. Jour. Crim.

L. & Crim. XII 500. PROVINCE OF THE TRIAL JUDGE IN CRIMINAL Causes. Quincey. A. Meyers.

Jour. Crim. L. & Crim. XII, 507. CriminAL RECORDS AND Statistics. Horatio M. Pollock. Jour. Crim. L. &

Crim. XII 514. THE PROPOSED ILLINOIS BUREAU OF CRIMINAL RECORDS AND STATISTICS.

Henry Barret Chamberlin. Jour. Crim. Li & Crim. XII 518. CO-OPERATION BETWEEN STATE AND MUNICIPAL BUREAUS AND Tue FEDERAL

CENSUS BUREAU. Joseph A. Hill. Jour. Crim. L. & Crim. XII 529. WHAT SHOULD BE THE FORM OF THE INDETERMINATE SENTENCE? Edward

Lindsey. Jour. Crim. L. & Crim. XII 534.

ILLINOIS LAW REVIEW

Volume XVII

DECEMBER, 1922

Number 4

ADMINISTRATIVE BOARDS AND COMMIS-
SIONS: ARE THE JURY-TRIAL RULES
OF EVIDENCE IN FORCE FOR

THEIR INQUIRIES?
By John H. WIGMORE

Historically, the rules of Evidence familiar to Anglo-American lawyers were a direct growth out of trial by jury; they are the method of aiding an untrained and inexperienced body of triers, newly selected 'ad hoc' for each trial, and functioning in all kinds of litigation of infinite variety. Presumably, therefore, the rules are inapt for a permanent officer or board sitting without a jury and skilled by long habit in the investigation of a special kind of controversy.

Whether, in point of sound policy, administrative officers or boards can be expected to reach truth, in the average, without observing strictly the jury-trial system of rules of Evidence, is a large question—too large for consideration here. Enough to suggest that most courts and lawyers are apt to assume too readily that without that system of rules the truth cannot be reliably reached. A strong case might be made out against that assumption.

The purpose here is solely to answer the question: How far, in point of present American law, do the jury-trial rules of Evidence have binding force for administrative tribunals ?

In general theory, it may be asserted that at common law the body of jury-trial rules of Evidence does not as such control the inquiries made by administrative officials, i. e., executive officials classified outside of the judiciary department and functioning without a jury. Furthermore, a declaration, in the statute

a. The following notes of English practice represent the result of a partial search among a variety of sources selected at random:

Taring Bodies: Assessed Taxes, Cases determined on Appeal (two vol

creating such officials, that their jurisdiction includes the power to V make the rules of their own procedure is an implied sanction of their independence of the jury-trial rules, and removes any possible common-law doubt. And finally, a legislative declaration that such officials need not be bound by the "common law rules of Evidence," or by the "technical rules of Evidence," is an express exemption from the enforcement of that body of rules upon such officials by the courts.

These general principles, however, have not been logically and completely carried out. In point of practice, as enforced by the courts, the law varies with the state and with the kind of admin

umes, 1823-1834, covering 1016 cases; only twice is a rule of Evidence invoked, viz., in Cases 974, 1016, where the Crown representative offered hearsay evidence of the assessee's having pursued game, and argued that the burden was on the assessee to disprove the fact; this contention was overruled; virtually only a question of burden of proof was involved, and not a question of admissibility); Board of Inland Revenue, Tax Cases. 1875-1915, 6 vols. (no title Evidence in the Index): (1892) R. v. Marsham 2 Q. B. 371 (apportionment of paving expense by local board of works; the magistrate, in an action by the board for payment, declined to allow cross-examination of the board's clerk as to the disbursement of the moneys; Lord Halsbury, L. C., allowing mandamus: “No doubt a magistrate may improperly reject evidence, and the Court may be unable to set him right, and the question is whether this case comes within that category; I think that it does not; the act of the magistrate was not a mere rejection of evidence, but amounted to a declining to enter upon an inquiry which he was bound to enter; he has not merely rejected evidence, but has declined jurisdiction"; Lord Esher, M. R., agreed that here the magistrate had virtually ruled “that whether the evidence would prove the subject-matter or not, the subject-matter was one into which he had no jurisdiction to inquire"); Pauner Settlement (Justices of the Peace): Burrow "Settlement Cases," 1732-1776 (only two cases on Evidence in the Index); Industrial Inventions: Cutler "Reports of Patent Design and Trademark Cases," 1884 + (a few rulings on Evidence); Liquor Licenses: (1898) R. v. Sharman 1 Q. B. 578 (licensing Justices may “determine what course of procedure they will adopt” as to swearing witnesses, etc.); Railway Rates: Neville and others "Railway and Canal Traffic Cases," 1856 + (no rulings on Evidence); Parliamentary Committee on Private Bills: Clifford and Rickards “Locus Standi Cases," 1873-1884 (virtually no Evidence rulings); Election Contests (Revising Barristers): Welsh "Registry Cases," Dublin, 1841 (no Evidence rulings); Smith "Registration Cases”: (1909) Storey v. Town Clerk, Smith "Registration Cases," II, 179 (evidence of canvassers not based on personal knowledge; the revising Barrister's ruling was affirmed at first, in the King's Bench Division, on the ground that the practice in election inquiries had been not to insist on the “strictest rules of evidence," per Alverstone, L. C. J., Channel, J., and Coleridge, L. J.; but in the Court of Appeal, the appeal was allowed, on the ground, among others, that the language of the Act implied that the revising Barrister must act on "legal evidence" only, per Vaughan Williams, L. J.. and semble, Bucklev, L. J., and Kennedy, L. J.); Summary Magistrate: (1910) The King v. Mahony 2 Ir. R. 695 (conviction of a betting offence by a divisional magistrate acting summarily, but reviewable on certiorari; the evidence was insufficient; held that though “the essentials of justice must be observed,” including the opportunity to make defence, etc., yet "mere want of evidence sufficient to warrant conviction" did not amount to want of jurisdiction; the opinions exhaustively consider all prior rulings in England and Ireland, and justify the remark of L. C. J. O'Brien that "never in the history of the law, at least so far as

istrative tribunal; and this is natural enough, in view of the wide variances, in origin and traditions, of the several bodies.

A. Federal Officials. If one were to reflect on the extent of the transactions presented for adjudication to the Land Office, the Patent Office, the Commerce Commission, the Trade Commission, the treasury appraisers, the Pension Bureau, and other federal officials, it would be apparent, even on a rough estimate, that the bulk of the quasi-judicial business done by these administrative bodies forms a respectable rival to that of the entire federal judiciary system,—whether tested by number of transactions, by value of property involved, or by influence on daily welfare of the community. Virtually all of these adjudications are reached without the enforcement of the jury-trial rules of Evidence. No doubt the parties are commonly represented by professional lawyers, at least in contested cases deemed important; and no doubt there is a general and instinctive use, in such cases, of the common rules of the

relates to this country, did a case receive more careful, more exhaustive consideration, than the one with which we are dealing"); Executive Commissions in General: (1922) Wilson v. Esquimalt & Nanaimo R. Co. A. C. 202 (on appeal from British Columbia; in an action to establish the railroad's title to mineral lands, the validity of a grant to G. was in issue; by B. C. St. 1904, 3 & 4 Edw. VII, c. 54, § 3, a grant would issue from the Lieutenant-Governor in council to a settler upon application "accompanied by reasonable proof of such occupation," etc.; here the Lieutenant-Governor had held a hearing with full opportunity of cross-examination, etc., but the railroad company contended that there still was not "reasonable proof” made by G.; Duff, J., speaking for the Privy Council, held that "whether or not the proof advanced was 'reasonable proof' was a question of fact for the designated tribunal," viz., the Lieutenant-Governor, and proceeded, referring to the British Columbian Supreme Court: “But the Chief Justice . . . proceeded largely upon the view that generally the deponents seem to speak without personal knowledge of the facts to which they depose, and such statements he seems to put aside entirely as valueless if not altogether incompetent. . Their Lordships think that the Lieutenant-Governor in Council was not bound by the technical rules of British Columbia law touching the reception of hearsay evidence, and they think there was nothing necessarily incompatible with the judicial character of the inquiry in the fact that such evidence was received." Court-Martial: (1921) The King v. Murphy 2 Ir. R. 190, 226 (the accused called for the proceedings of a court of inquiry, so as to cross-examine a witness for the prosecution to his former testimony therein, but this was refused, on the ground of privilege for such proceedings; the refusal being erroneous, held that the Court's error could not be availed of; Molony, C. J., “When the Court has jurisdiction to decide a matter, its jurisdiction is not ousted because it happens to give an erroneous decision; and it certainly cannot be deemed to exceed or abuse its jurisdiction merely because it incidentally misconstrues a statute, or admits illegal evidence, or rejects legal evidence; ... up to the present no text-writer on court-martial law has suggested that this Court could set aside a decision of a court-martial on account of an incidental mistake in applying the law of evidence; however desirable it might be to be able to invoke the authority of this Court in dealing with cases of such gravity as that before us, in the period of over two centuries that courts-martial have existed, there has been no instance of any such exercise of jurisdiction" (examining the authorities).

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