not, however, because the defendant was being forced to testify against himself, in violation of Amendment V, but because the government was unlawfully, and in violation of Amendment IV, in possession of the evidence. Professor Wigmore contends that the evidence should be received, because the general rule is that "the admissibility of evidence is not affected by the illegality of the means through which the party has been enabled to obtain the evidence." The exclusion of the evidence is referred to as a "quaint method of enforcing the law" and the imaginary court, according to Professor Wigmore, says to Titus, the defendant, and Flavius, the highhanded marshal: "Titus, you have been found guilty of conducting a lottery; Flavius, you have confessedly violated the Constitution. Titus ought to suffer imprisonment for crime and Flavius for contempt. But no! We shall let you both go free. We shall not punish Flavius directly, but shall do so by reversing Titus' conviction. This is our way of teaching people like Flavius to behave, and of teaching people like Titus to behave, and incidentally of securing respect for the Constitution. Our way of upholding the Constitution is not to strike at the man who breaks it, but to let off somebody else who broke something else." Preserving the figure thus adopted, we beg to suggest that Professor Wigmore has overlooked the third person in the drama, to-wit: Ray Spublica, friend of our youth. Now Titus's quarrel and his law suit are not with Flavius, the servant, but with Ray Spublica, the master, upon whom Amendment IV is just as binding as it is upon Flavius. Ray is, moreover, not only very much in favor of the Constitution but, being a Christian gentleman, is also attempting a literal performance of the biblical injunction, for his right hand, enthusiastically waving aloft the Constitution, knoweth not that his left hand is just as enthusiastically offering evidence which was seized in violation of that sacred instrument. Here is a very practical situation. The plaintiff, by violating the law, has sought to obtain an advantage over the defendant, whom it is attempting to convict for a breach of a less important law. Only by restoring the status quo ante can the constitutional right of the defendant be preserved, for this right is not only effective against the marshal, but is also equally effective against the government. If the government has broken the rules, the "natural way to do justice here" (to change the figure from the Roman to the American) is to call back the ball and put it in play again. Courts must, necessarily, deal with this situation on the theory that the evidence has never been obtained. Professor Wigmore's solution, however, is to admit the evidence. and to enforce Titus's constitutional rights by punishing Flavius for contempt of the Constitution. It is difficult to see upon what theory a breach of the "supreme law of the land" differs from a breach of any other law. Neither would be a contempt, but each 7. Wigmore "Evidence" (2nd ed.) §§ 2183, 2184. 8. Berry v. U. S. 275 Fed. 680 (7 C. C. A.). would be a crime, entitling Flavius to a trial by jury. In any event, at the present moment, there is no such crime as "breach of the Constitution," and, at least until there is, the suggestion must, we fear, remain in the realm of the law as it might be, but isn't. ROBERT N. GOLDING. To the Editors of ILLINOIS LAW REVIEW: The editorial note in the November issue of the REVIEW, "Illinois Takes the Lead in Bar Admission Standards," gives the same erroneous impression conveyed by the public press in reporting the revision of Rule 39, viz., that hereafter applicants for admission to the bar would have to show two years of study in a college. The American Bar Association at Cincinnati in 1921 (with five per cent of its membership in attendance) recommended that every applicant for admission to the bar should be obliged to show (1) that he had two years of college education acquired in a college, and (2) that he had studied law for three years in a law school which required for entrance two years of previous study in a college. It further recommended that no law school should be recognized as in good standing that did not employ a number of teachers devoting all their time to the work of the school. The Illinois State Bar Association did not adopt any of these recommendations. At its 1922 meeting it attempted to do so and failed. At its 1923 meeting at Peoria it dropped the American Bar Association recommendations and as a substitute there for adopted a recommendation which its Committee on Legal Education had agreed upon with representatives of Chicago evening law schools. This substitute provided (1) that after July 1, 1924, and until July 1, 1926, every applicant for admission to the bar must show, in addition to a high school education or the equivalent, the completion of thirty-six weeks of college study or the equivalent, and after July 1, 1926, seventy-two weeks of college study or its equivalent; and (2) that an applicant might pursue his legal study either in a law school or in a law office. It ignored entirely the recommendation that a certain number of the faculty of a law school should devote all their time to the work of the school. Consequently, our Supreme Court at its October term, in accepting substantially this recommendation, did not adopt the recommendations of the American Bar Association, but did adopt the more reasonable and democratic substitute of the Illinois State Bar Association. As to Kansas, the note is also misleading. Kansas established its present rule before the American Bar Association acted. The Kansas rule does not require attendance at college-merely proficiency in college studies occupying two years. It also permits law office study. I ask you to insert this in order to keep the record straight. And such being the facts, I am glad to join with the writer of the editorial note in hoping that other states may follow the lead of Kansas and Illinois. EDWARD T. LEE. DIVERSITIES DE LA LEY THE REVERSIONARY INTEREST OF THE DONOR OF ESTATES IN FEE TAIL UNDER SECTION SIX OF THE ILLINOIS CHAPTER ON CONVEYANCES. Should not the land revert to the donor of an estate in fee tail when the donee's issue fails to survive the donee? The statute (Section Six of the Conveyance Act) reads: "In cases where, by the Common Law, any person or persons might thereafter become seized, in fee tail of any lands, tenements, or hereditaments by virture of any devise, gift, grant, or other conveyance, hereafter to be made, or by any other means whatsoever, such person or persons, instead of being or becoming seized thereof in fee tail, shall be deemed and adjudged to be, and become seized thereof, for his or her natural life only, and the remainder shall pass in fee simple absolute, to the person or persons to whom the estate tail would, on the death of the first grantee, devisee, or donee in tail, first pass according to the course of the Common Law, by virtue of such devise, gift, grant, or conveyance." Before the statute De Donis Conditionalibus,' when a donor granted land to another and the heirs of his body, the estate created was considered a conditional fee because it was restrained to particular heirs, exclusive of others, and because a condition was implied that if the donee died without such particular heirs, the land should revert to the donor. Strangely enough, the condition was considered fulfilled on the birth of issue of the donee. When issue was born, the donee could alienate the land and give a fee simple. title, which he could later repurchase. This was the conventional process by which a donee could disinherit his heirs and destroy the grantor's reversion. At the instigation of the nobility of England, interested in limitation of alienation, the Statute De Donis was passed to prevent the donee from barring the descent to his heirs and to preclude the donee by alienation from cutting off the donor's reversion.3 We know, then, that one of the purposes of the Statute De Donis was to prevent the destruction of the donor's reversionary interest. Now what was this interest? The statute states that the land should revert to the donor "when the issue of such feofee is failing, and when the issue, if any were, had died." It is clear that before the statute if a tenant in tail did not aliene the land after issue born and issue later died before the donee, the land, on the death of the donee, would revert to the donor, because by the terms of the grant the land could descend to none but the heirs of the donee's body, and because there was a default as to them. It is 1. (A. D. 1285) Westm. II c. 1, 13 Edw. I. 4. Cooley "Blackstone" (1899) Vol. I p. 519. quite certain then that at the Common Law, while there were strictly no fee tail estates, but estates of conditional fee, the person entitled to take from the donee by descent was the heir. The conclusion is, that as, "nemo est hæres viventis," the donee's issue must outlive the donee to bar the donor's reversion. Was this changed by the Statute De Donis? Our Common Law in Illinois dates from the fourth year of the reign of James I and includes the Statute De Donis. The Common Law referred to in Section Six, therefore, must include the statute of 1285. Since the statute was passed to protect the grantor's reversion, as well as his intention, the land should revert to the donor if the issue of the donee failed to survive him. What does the Statute De Donis say? It says: "The will of the giver . . . shall be henceforth observed, so they to whom the land was given under such conditions, shall have no power to aliene the land so given, but that it shall remain unto the issue of them to whom it was given after their death, or shall revert unto the giver or his heirs if issue fail, either by reason that there is no issue at all, or if any issue be, it fail by death, the heir of such issue failing." (The issue of the donee dying before the donee is spoken of as failing.) When a man creates a fee tail, it is only logical that he desires the land to go on down the lineal line. If this is not possible, the land should revert to him or his heirs, rather than go to the collateral heirs of issue who failed to survive. But does the statute say this? It seems that it does. The land is to revert if one of two events take place: First, if there be no issue at all; and second, if issue fail by death. But what of the last clause-"the heir of such issue failing"? It seems quite inconsistent with the intention of the act and the history of the estate that the land should not revert if issue born of the donee die without surviving him, if only there are any heirs of the issue in existence, however remote. Does not the statute rather mean that the heirs of the issue fail to take the land because it reverts to the donor if the issue dies before the donee? These, then, are the facts. Before the Statute De Donis, without abuse of the grantor's intention by alienation, the land reverted unless there was an heir to take on the death of the donee. The Statute De Donis was passed, among other reasons, to protect the reversion of the grantor and to restore the situation without the abuse mentioned above. We are not concerned with common recovery, which is not consistent with the policy of Illinois. The Illinois legislature referred to the Common Law including the Statute De Donis, for otherwise it would simply have repealed the Statute De Donis and left the donee with power, on the birth of issue, to aliene the estate and repurchase, and thus cut off the remainder and the reversion. This was not desired by the Illinois Assembly. So that the Common Law referred to in the Illinois statute (Section Six) is the Common Law with the Statute De 5. Frazer v. Board of Supervisors 74 Ill. 282. Donis, and the person who would take under the Common Law with the abuse by alienation of the grantee corrected and eliminated by the Statute De Donis is the heir of the donee. This is the view held under the English authorities." What do the Illinois cases say? The first Illinois case, Voris v. Sloan,' says that an estate in fee vests in the heirs on birth. But here the grant was, "If A dies without issue, reversion to grantor." Butler v. Huestis construed the words "heirs of the body," in a will, as descriptive of persons and as being words of purchase and not of limitation. But the case implies that in a deed a construction not so liberal would be employed. The Illinois rule is built up on these and the following cases: Frazer v. Board of Supervisors,9 Schudorf et al. v. Cope, 10 Welliver v. Jones et al.11 Kyner v. Boll,12 and Moore v. Reddel 13 In the last case, Cartwright, J., says: "The rule is conclusively settled that if there is living issue at the time of the conveyance, the remainder vests in them at once, and if there are no children living, the remainder is contingent only until the 'birth of issue, when the remainder will vest." The Illinois construction of the Illinois statute (which refers to the course of the Common Law for its meaning) would seem to run counter to the Common Law. The Illinois Supreme Court regards the heirs of the donee as having a contingent remainder vesting at their birth. They did not have that at the Common Law. The courts have construed the word heirs to mean children, issue, etc., saying that such construction meets the intention of the grantor. This is hardly possible, except where the donor provides definitely, as in Butler v. Huestis, supra, that the estate will revert if the donee dies without issue. Such a meaning given to the word heirs is of course not in accord with the Common Law. The statute very carefully avoids use of the word 'heirs,' but refers to the course of the Common Law. It is no answer to the violence, as it seems to us, done the Illinois statute to suggest, as the learned justice did in Moore v. Reddel, that the interpretation found by the court is the correct one because the legislature, although it had the power to change the statute, had not done so. Hickox v. Claholt11 and Stearns v. Curry15 support the Illinois rule in its entirety. The better view, we believe, is that of Kales :16 "The statute expressly limits the remainder in fee to the person or persons to whom the estate tail would, on death of the first grantee, 6. Challis "Real Property" 2nd ed. 120. 16. Kales "Future Interests" (2d ed. 1920) secs. 402-406. |