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confined to tabulating the legal institutions which sprang from the curia, without any regard to offshoots possessing primarily other governmental functions, such as the cabinet and privy council. It seems, however, that the Star Chamber might well have been included in spite of the fact that it no longer exists, while the House of Lords still exercises judicial functions as does the judicial committee of the king's council. A chart published in The Origin of the English Constitution by George Burton Adams, appendix I, shows these institutional developments from the curia in a form more clear and easy to follow, but it does not include dates in connection with the various steps nor does it make any attempt to indicate the relationship of the various growths to one another. Dr. Winfield in giving further details has necessarily lost that simplicity and clarity obtained by Professor Adams.

Another book by the latter, A Constitutional History of England, contains a discussion of the Leges Henrici as a source for study of the Anglo-Saxon and Normal feudal systems as they stood side by side just before their unions and as the law of the conquerors was just beginning to supplant that of the conquered. Dr. Winfield exemplifies the character of his book as bibliographical when he discusses this same treatise and describes its nature, its style and its authorities rather than its conclusions or its place among the sources for the study of constitutional history.

The footnotes and index are excellent; but the book is intended for beginners in research, and for them it would be especially helpful if a table of contents were inserted. From it they could tell at a glance the nature of the principal sources; and, if the subheadings within the chapters were given, the problems which they will encounter would be called to their attention. The length of this review is due in part to the effort to supply something of what might better have been shown in a table of contents; although the importance and great usefulness of the volume under consideration would alone entitle it to extended notice. The book should prove not only a help but also an inspiration and incentive to the study of English legal history.

Silas B. McKinley.

The Cornell Law Quarterly




Judicial Tendencies of the Court of Appeals During the Incumbency of Chief Judge Hiscock*


Holdsworth, in his recently published work on the Sources and Literature of English Law,' shows us that there came a time in the later years of the 13th century when it is apparent that the day for philosophical treatises on the law, such as Bracton's, had gone by. "The common law," says he, "was becoming a special subject known only to practitioners of the royal courts; and what these practitioners wanted was short rules about writs, up-to-date knowledge of the rules of procedure, the most recent cautelae or tips in the art of tripping up an opponent. But these rules could best be learned by attending to the decisions of the courts." Philosophy was left to the impractical and the day of the case lawyer began. The American lawyer of the late 18th century found it useful to have certain conscious dealings with philosophy, but when the Revolution was over, the constitution adopted and a small, healthy and growing body of case law stood on the shelves, he found himself wanting substantially the same things as his 13th century brother. Since then the rationale of his art has, for the most part, been to find a case in point, and, failing that, to urge upon the court the necessity for a development of law to cover his client's case. Curiously enough, when he was forced to the latter course, he was dealing with the stuff of philosophy, though it is fair to say that he probably did not know it.

It has been authoritatively stated that the process of judicial decision in the doubtful case "when the balance wavers"-is swayed consciously or unconsciously by ultimate conceptions. The lawyer who argues and the judge who decides the case deal, as to the question in hand, with the origin, with the growth, and especially with the

*An address delivered before the Fourth Annual Meeting of the Cornell Law Association, November 13, 1926.

†Associate Justice of the Appellate Division, Supreme Court, 4th Department. iP. 35.

2Cf. (1926) 40 HARV. L. REV. 144, 145.

end or aim of the principle of law involved. That means, whether the lawyer or judge realizes it or not, that he is dealing with the philosophy of law.3

For the most part this philosophy is the potent factor which controls and measures the adjustment of law to life. With the thing itself lawyers and judges have always been more or less familiar. Judge Pound has said:

"What is antiquated today was once modern and practical. Call it sociological justice or any other hard name from the vocabulary of technical philosophy as you will, the courts have always in a greater or less degree given ear to those who contend for a modification of the old rule to conform to modern conditions."4

He mentions Sir Matthew Hale, who in spite of a belief in witchcraft, was yet able to state modern doctrines in a modern way when once they had been established outside of courts of justice. The work of Coke in making over mediaeval law," of Holt and Mansfield in settling the principles of modern commercial law, and of Kent in working out a body of law applicable to the then prevailing conditions in our own state, are other instances. As applied to a particular doctrine, an illustration may be found in the history of the master's liability for the acts of his servant, which shows four stages of development by decisions of the courts under the influence of changing conditions and opinions.8

The phrase used by Judge Pound to qualify the statement that the courts have always given ear to the plea for progress was well chosen. "In a greater or less degree" is a qualification in which is implied a varying and uneven growth. There have been periods when the law was well nigh static, not so much, perhaps, because the ear of the courts was unwilling as because social conditions were static or because the prevailing philosophy seemed to demand rigidity. There have been other periods when the law, like life itself, was informed with a quickening spirit, ready to put a doubtful doctrine to the test of reality, and, if found wanting, to scrap it, if possible; if not, to circumvent it by methods well known and occasionally resorted


Cuthbert W. Pound, The Relation of the Practicing Lawyer to the Efficient Administration of Justice (1924) 9 CORNELL LAW QUARTERLY 242.





'Oppenheim v. Kridel, 236 N. Y. 156, 140 N. E. 227 (1923) is an instance.

to;10 or, as a last resort, to pass it on for legislative treatment." While one speaks of periods, lines of demarcation cannot always be sharply drawn. The law, again like life, is a continuous tapestry with the figures of one stage gradually merging into those of the next. It is a matter of common knowledge, however, that the transition from the social life of the 19th century to that of the 20th has been swift and striking. So great has been the change that one might almost say there had been a break in social continuity. A competent critic, reviewing the mass of literature in every field dealing with the political and social conditions of the last century, said recently:

"The prime cause of these many books in which the American past becomes vivid and often romantic is that nineteenth century America is gone, is dead, except in its influences, is historically remote, and widely different from our present. We read of the New England 'Forties or of the South in Reconstruction or of Henry Ward Beecher or Grover Cleveland as we read in Plutarch, Clarendon, or Macauley."

A number of those books deal with the social life of the 'Nineties. They bear titles intended to characterize the period-"The Yellow 'Nineties," "The Mauve Decade," "The Romantic 'Nineties," and, most suggestive of all, "The Moulting 'Nineties." Moulting indeed they were. Old standards of social conduct and economic relations began to drop away, to be replaced by others unforeseen and almost undreamed of. The time was instinct with the spirit of change. It was thought of as the end of an era, and so it was.

The frontier and free land vanished together; population began to thicken and to become preponderantly urban; the corporation succeeded the individual operator, and the trust succeeded the small corporation; immigration poured foreign material into the melting pot so fast that the melting well-nigh ceased, with the result that the Puritan standards of moral conduct were crowded to the wall;12 and just on the horizon were the automobile, the aeroplane, the radio, and the whole sweep of mechanical and scientific advance.

Out of this welter of economic, industrial and social changes came to the courts novel and unheard-of problems, 13 not to be solved by precedents, for there were none; nor to be satisfactorily solved by analogies drawn from history and from settled and existing principles. It may be admitted that the courts generally did not

10 POUND, Supra note 7 at 166, 167.

"Cammack v. Slattery & Bro. Inc., 241 N. Y. 39, 148 N. E. 781_(1925). 12Cf. People v. Klinck Packing Co., 214 N. Y. 121 at 128, 108 N. E. 278 (1915). "Elihu Root, Judicial Decisions and Public Feeling, 35 Ñew York State Bar ASSOCIATION REPORTS (1912) 148, 151, 152.

quickly grasp the significance of the changing conditions. The failure to do so led not only to discontent with and criticism of the courts as governmental agencies something which was not entirely unknown-but it led also to an attack upon the common law itself, something which had never happened before.14 The chief source of the discontent was in the constitutional decisions construing legislative acts, dealing with social and industrial problems. This led to demands or proposed remedies whereby constitutional power, as between the courts and the legislature, should be re-adjusted.15

But the attack was extended to the whole body of law with a somewhat shrill demand that law be made consonant with justice— "justice" meaning the ethical concepts of Main Street.16 The tendency was away from an extreme of government of laws and not of men; a tendency, perhaps, toward the continental theory of free legal decision. The criticism which began at the turn of the century was well marked in its tendencies by 1906, when Judge Hiscock first went on the Court of Appeals, and reached its climax in the progressive years of 1912 and 1913. That the judges of our courts during those years did not readily break away from established doctrine, is not strange to those of us whose earlier training was in the same school of thought. If you will step across the campus with me and go for a few moments to the top floor of Morrill Hall, where, in the early 'Nineties, the Law School carried on in a few dreary rooms, I will show you briefly what that training was. The first concept there drilled into us was that the end or aim of law was to secure to the individual certain natural and inalienable rights. We were so informed by the Declaration of Independence and also, as I remember it, by Dean Hutchins, under whom we had "the misfortune"17 to read both the introduction and the opening chapter to the first book of Blackstone's Commentaries—at least so much of them as were included in the Second Edition of Chase's Blackstone, current in the year 1890. And on page 78 of that edition you will find these words: "The third absolute right inherent in every Englishman is that of property; which consists in the free use and enjoyment and disposal of all his acquisitions without any control or dimi

14Roscoe Pound, Do We Need a Philosophy of Law? (1905) 5 COL. L. REV. 339; Woodrow Wilson, The Lawyer and the Community, 35 AMERICAN BAR ASSOCIATION REPORTS (1910) 419.

15ALGER, THE OLD LAW AND THE New Order (1913) 34; RANSOM, MAJORITY RULE AND THE JUDICIARY (1912); DAVIS, THE JUDICIAL VETO. (1914). 16ABBOTT, JUSTICE AND THE MODERN LAW, (1913) ch. 1. Cf. the pioneer conception of justice, Roscoe Pound, supra note 7 at 113, 118. 17(1905) 5 COL. L. REV. 352.

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