DIVERSITIES DE LA LEY

PROFESSOR SCHOFIELD'S ESSAYS-READING OF THE BIBLE IN THE PUBLIC SCHOOLS.-It is gratifying to find prompt recognition given by the profession to the masterly Essays of our lamented colleague, Henry Schofield; and the quotation of his work by a state supreme court adds to the distinction and testifies to the influential character of his views.

In Wilkerson v. City of Rome, in the Georgia Supreme Court (110 S. E. 895), mandamus was asked to compel the Rome board of education to obey a city ordinance requiring "some portion of the King James version of the Bible, of either the Old or New Testaments, to be read and prayer offered to God in the hearing of the pupils of the public schools." The ordinance was pleaded (among other things) to be invalid as violating the constitutional provisions for freedom of religious conscience, etc. Gilbert, J., writing the opinion for the court (two judges dissenting) affirms the judgment issuing the writ, and examines elaborately the doctrine of religious freedom. In standing upon the principle that "Christianity is the only religion known to our American law," and in holding that the official reading of the Bible is no violation of religious freedom, the opinion proceeds thus to notice Professor Schofield's essay (in his "Essays on Constitutional Law and Equity" Vol. II p..459):

"The case of People v. Board, 245 Ill. 334, 92 N. E. 251, 29 L. R. A. (N. S.) 442, 19 Ann. Cas. 220, goes to greatest extremes in taking a contrary view of the question, and for that reason it is selected for discussion. An analysis and criticism of this case by a leading member of the bar of Illinois, a professor in Northwestern University (Ill.) is of peculiar value and should carry more weight for that reason. Such we find in Mr. Schofield's work on Constitutional Law, edited and published after his death by the law faculty of Northwestern University. That the analysis was thorough is shown by the fact that it, together with marginal notes of authorities, comprises pages 459 to 509, inclusive. In that case there was a majority opinion concurred in by five justices, and a dissenting opinion by two justices. It cites as authority the two cases mentioned above. Freeman v. Scheve, 65 Neb. 853, 91 N. W. 846, 93 N. W. 169; State ex rel. Weiss v. School Board, 76 Wis. 177, 44 N. W. 967, and we think Mr. Schofield is sustained in his statement that neither of these cases is sufficient to support the majority opinion in its entirety, because they hold, at most, that Bible reading may be so conducted in the public schools as to discriminate against those of the Roman Catholic faith, and therefore he concludes that the majority opinion 'makes Illinois the only state in the Union which puts the constitutional padlock on the Bible in the public schools.' He shows the origin of the Illinois constitutional provisions to be the same as that to which we have traced the Georgia provision, and thus accounts for the fundamental error in the majority opinion. In reference to the source of these constitutional provisions, he makes the following comment:

'Mr. Justice Story concisely expresses, in his work on the Constitution, the effect of the guaranties of religious liberty, as they appear in

the Virginia Constitution of 1776 and in the Virginia statute of 1785, in the Illinois Bill of Rights, and in the first amendment to the federal Constitution, as limitations on the power of organized government.' "And quotes from 2 Story on the Constitution, § 1877: 'The real object was to exclude all rivalry among Christian sects, and to prevent any [governmental] ecclesiastical establishment, which should give to a hierarchy the exclusive patronage of . the government.'

"He asserts that the proposition ultimately rests, not on the ground that reading the Bible in the public schools molests a person in the exercise of religious professions, worship, or opinion, but on the ground that reading the Bible in the public schools molests the taxpayer without any regard to his religion or want or religion.

'Reading the Bible in the public schools, even as a mode of worship, does not transform the teachers into an order of clergy to attend upon the offices of religion; nor does it transform the appropriation to pay the salaries of the teachers into an appropriation to help support the clergy of any sect; nor does it transform the schoolhouses into churches or places of worship; nor does it confine the occupation of teaching in the public schools to the members of any sect.'

"And further:

"The truth is, none of the original religious-liberty guaranties as they appear in the Virginia Constitution and statute and in the Illinois Bill of Rights, either the one for freedom of religious profession, worship and opinion, or the one for freedom from civil and political disabilities on account of religion, or the one for freedom from taxation to help support any church establishment, ever had any serious application or force as limitations on the power of the Legislature to provide public schools and prescribe the public school curriculum.'

"In regard to the objection that the King James version of the Bible is opposed to the Roman Catholic belief, he says:

'The answer is, the objection only shows, at the most, that the King James Bible is non-Roman Catholic, not that it is, of itself and necessarily in a constitutional sense, anti-Roman Catholic.'

"In regard to the objection on the part of those of the Jewish faith, he says:

'The case of a Jew complaining to a court of reading the Bible or instruction in the Christian religion in the public schools raises the question whether the Constitution vests in a Jew, not as a Jew, but as a taxpayer, a constitutional right to command courts to exclude reading the Bible or instruction in the Christian religion from the public school curriculum altogether, merely because it is the Bible of the Christian religion. The answer is, the Constitution does nothing of the kind. The Jew may complain to a court as a taxpayer just exactly when, and only when, a Christian may complain to a court as a taxpayer, i. e., when the Legislature authorizes such reading of the Bible or such instruction in the Christian religion in the public schools as gives one Christian sect a preference over others.'

"The analysis clearly shows the unsoundness of the conclusion reached by the majority of the court in that case, and the absence of authority to sustain it."

J. H. W.

THE FIRST EDITION OF JUSTINIAN'S CODE.-It is rare enough that an undoubted and authentic witness of any great period is

available, but one such has recently appeared. On February 13, 528, Justinian addressed the Senate in the Constitution "Haec quae necessario" announcing the preparation of a Code to be compiled from existing collections. It was the first step in the great scheme of the corpus, though in all likelihood neither the emperor nor his advisers were then aware to what their limited project would lead them. The code so announced was published April 7, 529, and by that time the entire corpus was under way, at least was under discussion. However, when the Digest and the Institutes were ready, a new edition of the Code was found to be required, finally published by the Constitution "Cordi," November 16, 534. It is this second edition, "repetitae praelectionis," which had come down to us.

And now inexhaustible Egypt supplies us with a fragment of the first edition of the Code in a scrap of papyrus found at Oxyrhynchus and just published by Messrs. Grenfell and Hunt (Oxyrhynchus Papyri Pt. XV, 1814). It contains merely some of the rubrics of the first book, but enough is given us to indicate in detail what the method of the commission was.

Cod. i 17, which in its present form, under a long rubric, contains the constitution "Deo Auctore" and "Tanta," here has the brief title "De Auctoritate Iuris-prudentium" and contains merely a constitution now found in Cod. Theod. 1, 4, 3 and an unknown one of Justinian addressed to the pretorian prefect, Menas. The superscription of Cod. i, 11, 7 is given and proves that constitution to be one of Anastasius, but i, 11, 10, a vigorously anti-pagan document, is omitted altogether. Similarly, Title xii, on the churches as asylums and Title xiii on manumission in the churches, are not found at all in this edition. Again, our fragment makes it somewhat less likely the supposedly lost constitution which Krüger numbered i, 16, 2 ever existed. And finally, it is significant that the Valentinian Law of Citations, which we know from Cod. Theod. i, 4, 3, is retained in this first edition of the Codex Justinianeus. The Digest was, of course, not published when the Code was issued, but the fact that the Citation Law was retained makes it probable that the Digest had not even been planned. If it had been, some preliminary announcement of the project would, in all likelihood, have taken the place of the constitution.

University of California.

MAX RADIN.

THE SUBJECTIVE AND THE OBJECTIVE IN THE LAW.-Mr. Justice Riddell of the Supreme Court of Ontario, who somehow often finds time to embellish the literature of the law while performing the exacting duties of a judge, in a paper some months ago read before the Canadian Bar Association has helped to make clear a point which always disturbs and always will disturb the layman. He says

"I remember very early in my own practice, the late Vice-Chancellor Proudfoot, when Mr. William Kerr, Q. C. (afterwards senator for the Dominion) advanced in argument what seemed to be an untenable proposition, saying to him, 'But, Mr. Kerr, is it your own opinion

that that is the law?' Mr. Kerr did not answer; he stopped in his argument, and remained silent for a moment, when the Vice-Chancellor said, 'I beg your pardon, Mr. Kerr; I should not have asked that question.' Mr. Kerr said, 'I thank your lordship; I was placed in an unfortunate position by the question. If I answered in the negative, I might prejudice my client's case; if in the affirmative, I would add nothing to my argument.' I have never forgotten that episode, and to this day, it is always an unpleasant thing for me to hear a counsel say, 'I think the law is so-and-so.' However earnest counsel may be, however firmly convinced of the soundness of his argument, he should remember that it is his argument the court wishes, not his opinion."

The incident recalls the widely circulated story which had a somewhat different ending. It is said an attorney in presenting an oral argument to a supreme court of one of the states advanced a highly absurd proposition of law. One of the judges turned round in his swivel chair and faced the counsel (for judges in courts of appeal sometimes show how much they are bored, by listening to oral argument with their backs turned), and asked with some asperity: "Mr. Jones, do you believe that is the law?" Here, also, counsel hesitated a moment, but he answered: "No, your honor, I do not believe it is, but I did not know how it might strike the court."

Such an answer probably would nearly always be prejudicial, but yet if the process of administering justice could (and, of course, it cannot) be stripped of subjective elements, such a response honestly made might be at once neither harmful nor inconsistent with the best ethical standards. The question here, as elsewhere, is one of more or less. If there is such a thing as absolute certainty in the application of law, then only ignorance of the law would morally excuse the advancing of errors; for here the truth is known and opinion and argument would cover the same ground. But the fact is otherwise. The law is not made up of a body of fixed rules. It is a fluctuating mass of hypotheses. The lawyer's function is not to state what was, or what is, but what will be, and that involves prophecy. Here opinion and argument may sever. Mere opinion except as supported by argument is scientifically of no consequence. Therefore, it is entirely proper for counsel to think one way and argue another; but since the layman has an innate sense of natural law, he will never be able to see in such a performance anything less than evidence of the rascality of lawyers. A. K.

COMPUTATION of Damages ACCORDING TO THE LEX UNICA COD. De Sententiis-[Entscheidungen des Reichsgerichts in Civilsachen, IV 52]. The plaintiff's complaint of nullity because of misapplication of the lex unica of Cod. 7, 47, is well founded.

Grounds:

The plaintiff alleges that growing out of another contract (not now in question) for delivery of sand made with the father of the defendant, he made a further contract with the father of the defendant for delivery by the latter of 25 cubic meters of sand at a price of M. 2.25 per cubic meter from the sandpit of Conrad D. in

N to a certain station of the Berlin-Coblenz railroad by the end of July, 1876. He further alleged that inasmuch as the defendant's father did not provide wagons to carry the sand he notified him repeatedly, especially in October, 1876, to make prompt delivery under the contract. But since delivery was not made and since the railroad had threatened the plaintiff to lay off 20 or 30 laborers if there was further delay, the plaintiff procured delivery through one George A. D. in N in October, 1876. Plaintiff further alleges that on account of the condition of the roads he was obliged to pay M.9 per cubic meter, which was a fair price. Plaintiff demands the difference between the price he was obliged to pay (M. 225) and the contract price (M. 56.25), amounting to M. 168.75, together with interest for delay. He sues the defendant as heir of his father.

The defendant denies any contract with his father, the notices, delivery by D, payment of M. 9 to D, and the fairness of the price.

The judge of first instance rejected the claim as not supported in fact. The second judge, the complaint having been amended to admit further proof, refused to allow damages of M. 112.50 and made an award of M. 56.25 as damages dependent on various oaths to be submitted to the plaintiff. The appellate judge declared that the claim of the plaintiff was dependent on proof of the contract with the father of the defendant and delay. On the question of damages, it was his opinion that the amount should not exceed double the price stipulated (= 2 × M. 2.25 = M. 4.50) and that from that amount a deduction should be made for the uncompleted counter performance, according to the 'lex unica,' Cod. 7, 47:

[Sancimus itaque in omnibus casibus, qui certam habent quantitatem vel naturam, veluti in venditionibus et locationibus et omnibus contractibus, hoc quod interest dupli quantitatem minime excedere. . . .]

Of the complaints made against this judgment, the second, of misapplication of the 'lex unica,' is well founded.

The proposition asserted in the complaint of nullity that the 'lex unica' is no longer law cannot be accepted. Many efforts have been made to draw limitations on this cloudy statute which is in conflict with other general principles. But that there is a general customary law which prevents its reception in this country has never been asserted either in doctrine or in practice.1 On the contrary, the prevailing view is that in those cases clearly provided for as 'in venditionibus et locationibus,' the statute is to be applied on the court's motion, even though the party has not claimed its application. This includes the case of a contract for service, as here, as well as that of a letting of things, and clearly so when the services are of the class of 'locari solitæ.'

Nor can doubt of the application of the statute be entertained because Justinian provided only for 'casus qui certam habent quantitatem vel naturam.' For, in the case at bar, since the content of the

1. [See authorities in Entsch. R.G. IV p. 182 n. 1, omitted in this translation.]