Under all the statutes there is quite a period of time after laborers', and materialmen's liens, and taxes for local betterments become a charge upon the land before they appear in any of the public records, and therefore no examination of the records will disclose them. Without further recital of the innumerable instances in which no examination that can be made of the public records will furnish any protection to the purchaser, it must be manifest to you all that an examination of the most perfect abstract is no assurance; that the examinations that are customarily made by the most conservative title experts are neither systematic nor complete; and that in the nature of things it is impossible to make certain of the title by any investigation that is within the range of practicability. From what has been said it is to be hoped that you will not take me to be skeptical of the safety of investments in land and landed securities. There is nothing better. AIN'T IT TRUE? A Mississippi soldier boy, now somewhere in Germany, recently wrote his Louisiana sweetheart as follows: (Air-"Silver Threads Among the Gold.") Darling, I am coming back Silver threads among the black Now that peace in Europe nears, I'll be home in seven years. I'll drop in on you some night, With my whiskers long and white Yes, the war is over, dear, And we're going home, I hear! Home again with you once more, Say-by nineteen-twenty-four. Sailing back across the sea; Back to where you sit and pine, But we're stuck here on the Rhine. You can hear the gang all curse "War. is hell, but peace is worse!" A PROBLEM IN WILLS By Colonel Eugene Wambaugh, Assistant Judge Advocate General of the Army, Cambridge, Massachusetts. The Supreme Court of the United States will shortly be called upon to define the distinction between the legislative power of the nation and the States. The question arises out of the problem dealing with the Constitution in times of war-will the declaration of our fathers sufficiently stretch or will it be strained to the breaking point? The nicety of the question becomes then this: Does the Constitution mean what it seems to mean or is it elastic enough to mean almost anything, under stress? Shall it be considered as a historical document and interpreted according to the time of its writing, or will it be defined, broadened and enlarged according to the exigencies of the times? Is it a Constitution intended particularly for civil measure or one which must be considered in the light of military expediency? Is the essential feature of our governmental system one of individualism? What becomes of the reserved rights of the States? The problem is one dealing with the distinction between the legislative power of the nation and the legislative power of the several States. The problem is, in brief, whether it is within the power of Congress to enact that a will, if made outside the limits of the United States by a person in the army, navy, or Marine Corps, shall be admitted to probate by the local courts within the United States, when executed and attested in certain simple ways provided by Federal statute. The simple requirements might be that the will need not be under seal, that it must be signed, that the signature need have but two witnesses, and that the witnesses need not see the testator sign, need not sign in his presence, and need not sign in the presence of each other. You perceive that this is not a provision for an oral will, but is merely a provision for a very simple form of signing and attesting a will that is in writing. The constitutionality of such a Federal statute is worthy of careful study. The problem is whether it is within the power of Congress to Ideal with the formalities for military wills. Stated with greater detail, the problem is whether, under the Constitution of the United States, it is within the power of Congress to require that a State must admit to probate a military will which does not conform to the rules of that State regarding formalities of signing, sealing, and attesting. but which does conform to rules defined by Congress. The statement of the problem brings to mind instantly a skeleton picture of the topics with which a full discussion would have to deal. At the outset, then, let a few obvious questions be answered. Does not the formality requisite in wills regarding immovables depend as a general principle upon the law of the place where the immovables are— the situs? Yes. Does not the formality reqisite in wills regarding movables depend as a general principle upon the law of the testator's domicile? Yes. In the United States are not the several States the situs and domicile for the purpose of applying those general principles? Yes. Is not the law of wills a branch of State law rather than of Federal law? Yes. Must not the power of Congress regarding this matter be non-existent unless it can be based upon some expression of the Constitution? Yes. Is there any provision expressly giving such power to Congress? No. Where, then, can the power be found? If at all, in the express provision (Article I, section 8, clause 12) giving to Congress power "to raise and support armies." Yet can it be said that the providing of simple formalities for military wills is incident to raising and supporting armies? That is really the serious constitutional question raised by the problem. There are other less serious constitutional questions, for example, whether such legislation would create a discrimination invalid under the Fifth Amendment-a question requiring a negative answer so emphatically that to ask the question at all is almost a waste of time. The great question is, as has been said, merely the question whether prescribing simple formalities for military wills is within the power of Congress as incident to the express power "to raise and support armies." There is no novelty in suggesting that simplicity of execution and of attestation may appropriately be conceded to the wills of persons in active military service. Two thousand years ago, or thereabouts, such a regulation was made by Julius Caesar. (See Ulpian's statement quoted in Justinian's Digest, book 29, title I, fragment 1, at the beginning.) Later Roman emperors made similar regulations; and the Emperor Trajan' con densed the whole matter into the short statement "let them make their wills in any way they please." (Ib.) The reason for this liberality toward soldiers was stated some eighteen hundred years ago by the earliest Roman writer on elementary law whose works have come to us in substantially the ancient form-Gaius. He said that the reason is found in their extreme ignorance of law. (See Gaius' Institutes, book 2, sec. 109.) As Gaius expressly says one of the concessions to soldiers was exemption from the requirement of the legal number of witnesses. The reason, however, was not the soldiers' ignorance. Soldiers are as ignorant when at home as in the field, but the privilege of exemption from the formalities to which civilians had to conform was conceded by the Romans to no soldiers other than those in actually active service. When the soldier was at home he had to observe the ordinary formalities. (See Posto's Gaius, fourth edition, p. 182.) The ordinary formalities were indeed cumbersome, for they included five witnesses, a ceremony similar to a sale of the estate to a trustee, and a writing indicating the trusts on which the trustee took the property. (See Gaius' Institutes, book 2, secs. 102-104; Roby's Roman Private Law, vol. I., pp. 177-178..) It was this cumbersome inconvenience that was impracticable for soldiers on service and hence by statute inapplicable to wills made by them. As a recent commentator has said, the favor shown by the Roman law to soldiers "can be justified by the difficulty which the observance of the strict rules of law would create for soldiers," for, as the same commentator says, "soldiers cannot, like other people, have an opportunity to consult a lawyer," and the ignorance of soldiers really is, as that commentator well says, "not a professional ignorance, but rather a temporary inability to acquaint themselves with the law." (May, Elements de Droit Romain, par. 247, pages 552-553). In English law also military wills have been the subject of special consideration. For the present purpose it is enough to cite the Statute of Frauds, which in 1677 established formalities for wills in general, and in its section 23 said: "Notwithstanding this act, any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his movables, wages and personal estate, as he or they might have done before the making of this act." It is noticeable that the date of the Statute of Frauds is just after the days of the Commonwealth, and that it is just before the systematizing of the British army. It is still more noticeable that the Statute was passed in the days of the American Colonies, and that the provisions made by it were familiar to the colonists for a hundred years before the American Revolution, Yet we have in the United States a difficulty which did not exist in the old Roman law, and which does not exist, it may be, in the modern countries inheriting the Roman system, and which certainly never has existed in England. We have here the difficulty of constitutionality, a difficulty based upon our having a written constitution and upon our having a division of functions between the States and the nation. In those other countries it may be enough to ascertain that proposed legislation is desirable. In the United States one must go further and, if the legislation is to be national, one must find the Federal legislative power within the four corners of the Constitution. The Constitution says: To raise "The Congress shall have Power . . . To declare War and support Armies; To provide and maintain a Navy; . . . And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.' In accordance with custom one stops to ask whether the Constitution is to be construed literally or liberally. Does the power to declare war go no further than making a declaration? Can there be no army, no navy? Lest some one should imagine such an absurdity, the Constitution hastens to specify power to raise and support armies and to provide and maintain a navy. Does the power to support armies and maintain a navy go no further, let us say, than the obvious, though unnamed, incidents which may be enumerated as guns, ammunition, clothing, food, fuel, and barracks-in short, the support and maintenance whose nature is physical? Are there not moral and mental means of support? The answer is easy. In military work more than in work of other sorts it is recognized clearly enough that materials, tools, and a sound body are not all. There must be a host of non-physical incidents taken into account. There must be loyalty, contentment, and cheerfulness. There must be, among other things, a fixed belief that society does not forget the soldier and that |