tion (p. 356) seems hardly accurate. The proposition as to Assignment of After Acquired Property (p. 357) seems to be laid down somewhat too broadly. The changes in this edition are not extensive. The book on the jurisdiction of Chancery has been recast and enlarged, and to that on Equitable Rights matter has been added relating to Married Women's and Infants' Property. The brevity of the time which has elapsed since the prior editions appeared shows the well-deserved popularity of the book.

A. W. S.

THE LAWYER IN LITERATURE. By John Marshall Gest. Boston: Boston Book Co. 1913. pp. xiv, 249.

The scope of this book is indicated by its table of contents, which includes essays on the law and lawyers of Charles Dickens, Sir Walter Scott and Balzac, on the writings of Coke, the influence of Biblical texts on English law, and on the historical method of studying the law, as illustrated by the law of Master and Servant. Most of the chapters have been published previously in law magazines, but they are well worth gathering in a book.

Though the law has always been said to be a jealous mistress, yet a certain flavor of literature has clung to it, and there will be cause for regret if this ceases to be true as the profession becomes more utilitarian in its aims and the work of its members more narrowly specialized.

Dean Wigmore contributes an interesting preface to Judge Gest's book, in which he sets forth the practical advantages to a lawyer of an acquaintance with literature. Doubtless there are practical advantages. If there were none other than to enable him to view in a better perspective faults, real or imaginary, of the law and lawyers, it would be much.

When we read the exhortation of Dick the Butcher to Jack Cade, "The first thing we do, let 's kill all the lawyers"; and discover the length of time that it took Lord Eldon to decide a suit in Chancery, and remember that, nevertheless, the law and lawyers have survived and improved, we are justified in hoping that they may survive a good while longer and make further improvement without a complete social upheaval to bring about these results.

But to those who care for it, literature is likely to be like beauty, its own excuse for being; and if this little book excites an interest in the books with which it deals, and with other books of great writers, it will serve a good purpose.

S. W.

REGULATION, VALUATION, AND DEPRECIATION OF PUBLIC UTILITIES. By Samuel S. Wyer. Columbus, Ohio: Sears & Simpson Co. 1913. pp. 313. There is a good deal that is valuable in this rather unusual book upon the general subject of public-service regulation, and the form of the presentation is well designed to give the reader access to its contents. It is plain that the arrangement of the book has received much thought, and it is worked out in the careful way engineers have. Each chapter is carefully analyzed by a diagram prefacing it, and each paragraph is backed up by a reference to its source in the authorities. The reference data and the selected bibliography increase the value of the book as a reference work. The book is apparently designed to put the engineering profession in touch with the way the legal profession views these problems. But it should be of equal value in putting at the disposal of lawyers the methods used by engineers in reporting upon public utilities. We are undertaking to regulate all the doings of these public services by iegal principles now-a-days. And the lawyer must, therefore, have an understanding of the technique of the businesses with which he is dealing, such as he may get in this hand-book for engineers.

B. W.

A HISTORY OF DIVORCE. BY S. B. Kitchin. Cape Town: J. C. Juta & Co. 1912. pp. xvi, 293.

This book is an essay on the history of divorce from the early Roman to the present times. It is not a complete history of the subject, for the author has not had the use of unusual library facilities. It covers in a brief, readable way the law during the Roman period, in the Eastern Church and Eastern Europe, in the canon law and Western Europe, from the Reformation to the French Revolution, in England, the United States, and the British Colonies. Only sixteen short pages are devoted to the United States, the most fruitful field for constructive work in divorce law. The book is as complete as anything now in existence on the whole subject, but is far from being exhaustive. The most interesting feature is the writer's treatment of the various intellectual and religious movements affecting divorce.

PSYCHOLOGY APPLIED TO LEGAL EVIDENCE.

By G. F. Arnold. Calcutta:

Thacker, Spink, and Company. 1913. pp. 607.

MODERN LAW OF EVIDENCE. By Charles F. Chamberlayne. Volume IV, Relevancy. Albany: Matthew Bender and Company. 1913. pp. xxxv, 4956. THE GOVERNMENT IN THE CHICAGO STRIKE. By Grover Cleveland. Princeton: Princeton University Press. 1913. pp. 50.

THE INDEPENDENCE OF THE EXECUTIVE. By Grover Cleveland. Princeton: Princeton University Press. 1913. pp. 82.

THE VENEZUELAN BOUNDARY CONTROVERSY. By Grover Cleveland. Princeton: Princeton University Press. 1913. pp. 122.

NATIONAL SUPREMACY. By Edward Corwin. New York: Henry Holt and Company. 1913. pp. viii, 321.

A HISTORY OF CONTINENTAL CRIMINAL PROCEDURE. By A. Esmein. Translated by John Simpson. Boston: Little, Brown, and Company. 1913. pp. xlv, 640.

FLOTSAM AND JETSAM. By Albert W. Gaines. Brookline and Boston: The Riverdale Press. 1913. pp. 107.

AIDS TO THE STUDY AND USE OF LAW BOOKS. By F. C. Hicks. New York: Baker, Voorhis, and Company. 1913. pp. 129.

THE THIRTEENTH JUROR. By Frederick T. Hill. New York: The Century Company. 1913. pp. 211.

LAW OF CONTRACTS. By Ernest W. Huffcut and Edwin H. Woodruff. Third Edition. Albany, N. Y.: Banks and Company. 1913. pp. 774.

A DIGEST OF ENGLISH CIVIL LAW. By Edward Jenks. Book III, Sections IIIXII, Law of Property (continued). London and Boston: Butterworth and Company. 1913. pp. vii, 977.

CONSULAR TREATY RIGHTS. By Ernest Ludwig. Akron, Ohio: The New Werner Company. 1913. Pp. 239.

NOTES ON THE SCIENCE OF GOVERNMENT AND THE RELATIONS OF THE STATES TO THE UNITED STATES. By Raleigh C. Minor. University of Virginia: Anderson Brothers. 1913. pp. x, 171.

EL FENOMENO DE LA GUERRA. By Jorge del Vecchio. Madrid: Hijos de Reus, Editores. 1912. pp. 171.

HARVARD

LAW REVIEW.

VOL. XXVII.

JANUARY, 1914.

No. 3.

THE END OF LAW AS DEVELOPED IN LEGAL RULES AND DOCTRINES.

IT

I. SOCIAL JUSTICE AND LEGAL JUstice.1

T is said that law is the body of rules and principles in accordance with which justice is administered by the authority of the state. In other words, the object of law is the administration of justice. At the outset, then, we are met by the question, what is justice? What is the end which we seek to attain through the legal system? This question may be taken up historically or philosophically. We may inquire what is the end of law as it has developed in legal rules and doctrines and as it has developed in juristic thought. On the other hand we may inquire what ought to be conceived as the end of law. We may ask, what do economics, politics and ethics point out as the purpose toward which the legal system is to be directed? Pursuing these inquiries, one NOTE. - The substance of this paper will appear in a forthcoming book to be entitled "Sociological Jurisprudence."

1 See my paper, Social Justice and Legal Justice (address before the Allegheny County Bar Ass'n at Pittsburg, April 5, 1912), 75 Central Law Journal, 455. On the subject of the end of law reference may be made to Miller, The Data of Jurisprudence, chap. 6; Salmond, Jurisprudence, § 9; Pulszky, Theory of Law and Civil Society § 173; Bentham, Theory of Legislation, Principles of the Civil Code, pt. I, chaps. 1-7; Holland, Jurisprudence, chap. 6; Gareis, Vom Begriff Gerechtigkeit; Demogue, Notions fondamentales du droit privé, 119-135. See also Kant, Metaphysische Anfangsgründe der Rechtslehre, Einleitung in die Rechtslehre, 2 ed., § C, pp. xxxiii ff. (Hastie's transl. pp. 45-46); Spencer, Justice, chaps. 5, 6; Willoughby, Social Justice, chap. 2; Sidgwick, The Methods of Ethics, chap. 5; Paulsen, Ethics (Thilly's transl.), chap. 9; Dewey and Tufts, Ethics, chaps. 20-24.

quickly perceives a significant divergence between the idea of the end of law which had developed in actual rules and doctrines and obtained in juristic thought at the end of the nineteenth century, on the one hand, and the idea of justice which had come to obtain in the other social sciences. So marked was this divergence that the promoters of social legislation did not hesitate to contrast what they called legal justice with social justice.2

Many examples of the divergence between the nineteenthcentury legal conception of justice and the conception which came to obtain in the other social sciences at the end of that cen

tury might be cited. But one will suffice for our purpose, namely, the course of decision of the courts from 1890 to 1900, and in some of our courts down to 1910, upon the subject of liberty of contract. Two of our state courts, in passing adversely upon labor legislation because it infringed upon a theoretical equality of contract, noted the frequency of such legislation in recent times, but said (one of them as late as 1902) that it was not necessary to consider the reasons therefor. 3 Another court asked what right the legislature had to "assume that one class has need of protection against another." Another court said gravely that the remedy for the company-store evil was "in the hands of the employee," since he is not compelled to buy from the employer; 5 overlooking that there may be a compulsion in fact where there is none in law. Another

4

2 Is Class Conflict in America Growing and is It Inevitable? American Journal of Sociology, XIII, 764. See also Ross, Social Psychology, 211–212. A number of instances are collected in my papers, Do We Need a Philosophy of Law, 5 Columbia L. Rev. 339; Liberty of Contract, 18 Yale L. Journ. 454.

3 Lowe v. Rees Printing Co., 41 Neb. 127, 135; State v. Kreutzberg, 114 Wis. 530, 537. It must be said, however, that at least one of these courts would not take such a position to-day. See Borgnis v. Falk Co., 147 Wis. 327.

State v. Haun, 61 Kan. 146, 162.

5 State v. Fire Creek Coal & Coke Co., 33 W. Va. 188, 190. While the court was laying down this academic proposition, those who had studied the actual situation were pointing out that the contrary was true in fact. "He is not free to make such a contract as might please him because, like every party to a contract, he must come to such conditions as can possibly be agreed upon. He is less free than the parties to most contracts, and, further, he cannot utilize his labor in many directions; he must contract for it within restricted lines." Wright, Practical Sociology, 5 ed., 226.

• "Probably the modification of this general principle [assumption of risk] by some judicial decisions and by statutes like [the Federal Safety Appliance Act] . . ., is due to an opinion that men who work with their hands have not always the freedom and equality of position assumed by the doctrine of laissez faire to exist." Holmes, J., in Schlemmer v. Buffalo R. & P. R. Co., 205 U. S. 1.

8

said that "theoretically there is among our citizens no inferior class" — and, of course, no facts could avail against that theory. Because it violated a theoretical abstract equality, legislation designed to give workers some measure of practical independence under the actual conditions of modern industry, was said by state courts at the end of the nineteenth century to put them under guardianship, to create a class of statutory laborers, and to stamp industrial laborers as imbeciles.10 As late as 1908, even the Supreme Court of the United States dealt with the relation of employer and employee in railway transportation as if the parties were farmers haggling over the sale of a horse." Only the other day, the highest court of New York told us that a workmen's compensation act "does nothing to conserve the health, safety or morals of the employees. This artificial type of reasoning is fast disappearing from the books in this particular connection. Today it does not need to be refuted outside of a decreasing minority of our state courtrooms. The Supreme Court of the United States abandoned it definitely some years ago.13 But the type of reasoning of which it is an example is not extinct. When that

12

7 Frorer v. People, 141 Ill. 171, 186, holding adversely to a statute prohibiting company stores and requiring miners to be paid weekly.

8 Braceville Coal Co. v. People, 147 Ill. 66, 74 (coal to be weighed for fixing wages); State v. Haun, 61 Kan. 146, 162 (wages to be paid in money).

People v. Beck, 10 Misc. (N. Y.) 77 (dissenting opinion of White, J.). The statute fixed hours of labor on municipal contracts.

10 State v. Goodwill, 33 W. Va. 179, 186 (statute against payment in store orders). Another court said such legislation was insulting to the manhood of laborers. Godcharles v. Wigeman, 113 Pa. St. 431, 437 (wages in iron mills to be paid in money). In Lochner v. New York, 198 U. S. 45, 57, Peckham, J., said: "They are in no sense wards of the state." Compare also the language of Harlan, J., in Adair v. United States, 208 U. S. 161, 175: "The right of a person to sell his labor upon such terms as he deems proper, is in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell it. So the right of the employee to quit the service of the employer, for whatever reason, is the same as the right of the employer, for whatever reason, to dispense with the service of such employee. . . . In all such particulars the employer and the employee have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract, which no government can legally justify in a free land." See the comments upon this case in Mr. Olney's paper, 42 American L. Rev. 164.

11 Adair v. United States, 208 U. S. 161, 175.

12 Ives v. South Buffalo R. Co., 201 N. Y. 271.

13 McLean v. Arkansas, 211 U. S. 539; Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549, 566-575.