first pass according to the course of the Common Law by virtue of such grant. At Common Law it was impossible to ascertain to whom the estate would pass until the death of the donee in tail, since by the course of the Common Law the estate tail passed by descent to the first tenant's heir at law providing such heir at law was of the issue of the body of the tenant in tail."

The Illinois statute is copied from the Missouri Act of 1825. Missouri, Vermont, Arkansas, and Colorado have practically similar statutes. The first Illinois cases seem to indicate that the heir must outlive the donee, but the actual decisions in these cases hold the contrary. Arkansas" and Vermont's hold the remainder contingent but subject to be defeated if the issue dies during the life of the donee. The doctrine claimed by this note to be the true one is well expressed by Dictum of Peters, J.,19 which is cited in an Ohio case, Dungan v. Kline.20 Professor Kales, in a discussion21 of Life Insurance Company v. Hoppin,22 asserted that there is nothing better settled than that a remainder to the heirs of the body, or to the heirs of a living person, is a contingent remainder. No one has heirs of the body until his death. Hence, those who are to answer to the description of heirs, or heirs of the body of a living person, cannot be known until the ancestor's death. The Illinois Supreme Court23 has held that the rule in Shelley's case was by implication abrogated by the statute on entails for all cases where remainder was to the heirs of the body.

The conclusion we reach is that the Illinois cases have not followed the statute. The decisions are practical in their effect, but this is legislation. The Illinois judicial rule should be changed to avoid misleading those who may rely on the conveyance act, which alternative is probably out of the question, as property rights have been adjudicated on the basis of the rulings of the courts, or else the statute should be modified by the legislature, either to conform to the Illinois judicial rule or to expressly declare the rule as it seems it should be.

J. F. O., JR.

LIBEL ON A Legislature. Since our country has taken over the government of the Philippine Islands it has been difficult to determine exactly what laws have been abrogated by the change of sovereignty, as courts are loath to declare old laws obsolete.

A remarkable case (People of the Philippine Islands v. Perfecto XXI Official Gazette 415) was decided by the Supreme Court of the Philippines in October, 1922. Certain documents of testimony given by witnesses in the investigation of companies manu

17. 44 Ark. 458, 476.

18. 69 Vt. 272; 69 Vt. 388.

19. Dart v. Dart 7 Conn. 250.

20.

21.

81 Ohio State 371.

(1911) I. L. R. VI 270.

22. 249 Ill. 409.

23. Lelurdorf v. Cope 122 Ill. 317. 331; Butler v. Hurstis 68 III. 594, 599-600; Lancaster v. Lancaster 187 Ill. 540.

facturing cocoanut oil had disappeared from the office of the secretary of the Senate. A special session of the Senate having been called by the Governor General, this loss was reported and on the following day a newspaper, La Nacion, published an article concerning the "scandalous robbery of records" and insinuated that it would not be necessary to go out of the Senate itself to find the records and that the persons in charge of the investigation of the disappearance would not have to display great skill in order to succeed in their undertaking unless they should encounter the insuperable obstacle of official concealment. The investigation was called a "comedy" and the perpetration of the robbery did not surprise the paper at all. The editor then continued:

"How many of the present senators can say, without remorse in their conscience and with serenity of mind, that they do not owe their victory to electoral robbery? How many?

"The authors of the robbery of the records from the iron safe of the Senate have, perhaps, but followed the example of certain senators who secured their election through fraud and robbery."

By resolution the Senate ordered the prosecution of the editor of La Nacion. The defendant was found guilty in the municipal court, and again in the court of first instance of Manila, for violation of article 256 of the Penal Code which punishes

"Any person who, by writing, shall defame, abuse, or insult any minister of the Crown or other person in authority."

The trial judge founded his decision upon the case of United States v. Helbig, Registro General No. 14705, in which the accused was charged with having said, "To hell with the President and his proclamations," in violation of article 256 of the Penal Code. Helbig was found guilty in the judgment of the lower court and appealed on two principal grounds: (1) That the accused was deprived of the constitutional right of cross-examination, and (2) that article 256 of the Spanish Penal Code was no longer in force. Subsequently the Supreme Court held that the trial court had committed the prejudicial error of depriving the accused of his right to cross-examine witnesses, set aside the judgment appealed from, and ordered the return of the record for a new trial. The record of the Helbig case, however, was never again elevated to the Supreme Court.

In his opinion, the trial judge said that the antiquated provision of the Penal Code of Spain was doubtless incorporated for the protection of the ministers of the Crown against free speech and action by Spanish subjects and a severe penalty was prescribed as it was considered a much more serious offense to insult the king's representative than an ordinary individual. We have no ministers of the Crown or representatives of His Majesty, and this provision was thought to have passed into "innocuous desuetude," but the Supreme Court of the Philippine Islands has, by a majority decision, held that article 256 is the law of the land, "The Helbig case is a precedent which, by the rule of stare decisis, is binding upon this

court until otherwise determined by proper authority." The judge continued:

"In the United States such publications are usually not punishable as criminal offenses, and little importance is attached to them, because they are generally the result of political controversy and are regarded as more or less colored or exaggerated. Attacks of this character upon a legislative body are not punishable under the libel law. Although such publications are reprehensible, yet this court feels some aversion to the application of the provision of law under which the case was filed. Notwithstanding the change of sovereignty, our Supreme Court, in a majority decision, has held that this provision is still in force, and that one who made an insulting remark about the president of the United States was punishable under it. If it be applicable in that case, it would appear applicable in this case. Hence article 256 must be enforced, without fear or favor, until it shall be repealed or superseded by other legislation, or until the Supreme Court shall otherwise determine.

"In view of the foregoing considerations, the court finds the defendant guilty as charged..

The Supreme Court of the Philippine Islands acknowledged in its opinion that perchance there might exist some doubt as to the authority of its decision in the Helbig case. However, in that case there was an oral defamation, while in the instant case there is a written defamation, For other reasons, also, the Supreme Court preferred to ignore the Helbig decision.

A majority of the court held that the Philippine libel law (Act No. 277) repealed so much of article 256 of the Penal Code as relates to written defamation, abuse, or insult, and that under the facts alleged in the information the accused was neither guilty of a violation of article 256 nor of the libel law. Three members of the court believed that article 256 was abrogated completely by the change from Spanish to American sovereignty over the Philippines and is inconsistent with democratic principles of government. Hence the pre-existing Spanish law on the subject of 'calumnia' and injuria' must be held to be abrogated at least on the subject of calumny and insults in which the elements of writing and publicity entered, and the libel law must have the same effect on other provisions of the Spanish Penal Code, as, for instance, on article 256. The opinion proceeds:

"Sir J. F. Stephen is authority for the statement that a libel is indictable when defaming a body of persons definite enough for individual members to be recognized as such. But in the United States, while it may be proper to prosecute criminally the author of a libel charging a legislator with corruption, still criticisms on a legislature, no matter how severe, are usually held within the range of liberty of the press unless the intention and effect be seditious.

"The provisions of the Spanish Penal Code having to do with such subjects as treason, 'lèse majesté,' religion and worship, rebellion, seditions and contempts, are no longer in force. It is a general principle of public law that on acquisition of territory the previous political relations of the ceded region are totally abrogated, 'politically' here denominating the laws regulating the relations sustained by the inhabitants to the sovereign.

"In the case of Pollard v. Hagan 3 Howard 210 it was said: 'It cannot be admitted that the King of Spain could, by treaty or otherwise, impart to the United States any of his royal prerogatives; much less can it be admitted that they have capacity to receive or power to exercise them. Every nation acquiring territory, by treaty or otherwise, must hold it subject to the Constitution and laws of its own government, and not according to those of the government ceding it.'"

Mr. Justice Malcolm in the Perfecto case continues:

"The nature of the government which has been set up in the Philippines under American sovereignty was outlined by President McKinley in that Magna Charta of Philippine liberty, his instructions to the Commission of April 7, 1900. In part the president said: 'The measures to be adopted should be made to conform to their (Filipino) customs, their habits, and even their prejudices, to the fullest extent consistent with the accomplishment of the indispensable requisites of just and efficient government. At the same time the Commission should bear in mind, and the people of the Islands should be made plainly to understand, that there are great principles of government which have been made the basis of our governmental system which we deem essential to the rule of law and the maintenance of individual freedom, and of which they have, unfortunately, been denied the experience possessed by us; that there are also certain practical rules of government which we have found essential to the preservation of these great principles, and these rules of government must be established and maintained in their islands for the sake of liberty and happiness, however much they may conflict with the customs or laws of procedure with which they are familiar. It is evident that the most enlightened thought of the Philippine Islands fully appreciates the importance of these rules and principles, and they will inevitably within a short time command universal assent.'

"Therefore it comes with a shock to hear of the statement that happiness, peace, and prosperity of the people of the Philippines and their customs, habits, and prejudices, to follow the language of President McKinley, demand obedience to authority, and royal protection for that authority.

"No longer is there a minister of the Crown or a person in authority of such exalted position that the citizen must speak of him with bated breath. In the eyes of our Constitution and laws, every man is a sovereign, a ruler, a freeman, and has equal rights with every other man. We have no rank or station, except that of respectability and intelligence as opposed to indecency and ignorance, and the door to this rank stands open to every man to freely enter and abide therein if he is qualified, and whether he is qualified or not depends upon the life and character and attainments and conduct of each person for himself.' (State v. Shepherd 177 Mo. 205.)

"It is true that in England, from which so many of the laws and institutions of the United States are derived, there were once statutes of scandalum magnatum,' under which words which would not be actionable if spoken of an ordinary subject were made actionable if spoken of a peer of the realm or of any great officers of the Crown, without any special proof of damage. The Crown of England, unfortunately, took a view less tolerant than that of other sovereigns, as for instance, the Emperors Augustus Caesar and Tiberius. The English statutes have long since, however, become obsolete, while in the United States the offenses of scandalum magnatum is not known. 'In this

country no distinction as to persons is recognized, and in practice a person holding a high office is regarded as a target at whom any person may let fly his poisonous words. High position, instead of affording immunity from slanderous and libelous charges, seem rather to be regarded as making his character free plunder for any one who desires to create a sensation by attacking it.' (Newell, "Slander and Libel"; Sillars v. Collier 151 Mass. 50.)"

Article 256 of the Penal Code was then held as contrary to the genius and fundamental principles of the American system of government, as grounded in a distorted monarchical conception of the nature of political authority, and as opposed to the American conception of the protection of the interests of the public.

The courts proceed to state that even from an entirely different point of view it must be noted that the article is broad enough in its terms to punish contempts against all members of the official class. Punishment for contempt of non-judicial officers has no place in a government based upon American principles. Our official class is not, as in monarchies, an agent of some authority greater than the people, but it is an agent and servant of the people themselves. The American system of government is calculated to enforce respect and obedience where such respect and obedience is due, but never does it place around the individual who happens to occupy an official position by the mandate of the people any official halo which calls for drastic punishment for the use of contemptuous remarks.

Mr. Chief Justice Araullo concurred with the acquittal of the accused on the ground that the facts alleged in the information did not constitute a violation of article 256 of the Penal Code, but held the opinion that the article was in force with respect to 'calumnia' and 'injuria,' by word or deed, against an authority in the performance of his duties, outside of his presence, though it was repealed by the libel law so far as it refers to calumny or insults committed against authority in writing or printing.

Justices Romualdez, Johnson, Street, Avenceña, and Villamor, in concurring in the result, held that the accused could not be guilty under either the article or the libel law, but that article 256 was still in force except as it refers to "ministers of the Crown," who no longer exist, and to calumny and 'injuria' or insults, by writing or printing, committed against authority in the performance of his duties or by reason thereof, which portion was replaced by the libel law.

H. LAWRENCE NOBLE.

University of the Philippines College of Law.

DOES AN AGENT HAVE POWER TO BIND HIS PRINCIPAL IN A CONTRACT WITH HIMSELF? DOES AN AGENT HAVE A DISTINCT PERSONA AS AGENT?-Our leading text (and perhaps it may be said with more accuracy, the only text in any literature) on analytical jurisprudence makes the statement that a servant or agent may have a distinct persona, i. e., pro hac vice, the persona of his master