nution, save only by the laws of the land **** So great, moreover, is the regard of the law for private property that it will not authorize the least violation of it; no, not even for the general good of the whole community * * * * Besides, the public good is in nothing more essentially interested than in the protection of every individual's private rights. In vain it may be urged that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no."

And so when we encountered the then recently decided case of In Re Jacobs,18 which permitted Mr. Jacobs to continue making cigars in his own home, although forbidden to do so by statute enacted to meet the social need of health regulation, it seemed entirely sound to us, philosophically and otherwise. And we noted it as a useful authority in the event some future client should be hauled up for doing what he had always done, though told by the legislature that he must stop.

So a few years later, when Knisley v. Pratt19 held that a woman employee injured by a machine left unguarded by her employer contrary to the statute, might not recover because she had assumed the risk, few of us appreciated the evil of the holding. Any other doctrine would have seemed to us, as it did to the Court, new and startling. Was it to be said that a woman upwards of twenty-one years of age was not at liberty to contract to take the risk in order to get the job? She, like her employer, was a free agent; they had equal rights. If she did not want the job on those terms, she could go elsewhere. Adam Smith, Mill and Spencer had told us so. A new breed of fanatics called sociologists were beginning to say that under actual industrial conditions this was not so, but to us they spoke without authority.

As the years went by, some of us, perhaps, caught the drift of the times and came to suspect that the number of those "unwritten and unchanging laws of heaven-laws that are not of today or yesterday, but abide forever, and of their creation knoweth no man" were somewhat fewer than we had been told was the case. But most of us, I think, were as static as the courts.

The long succession of decisions in the 'Nineties and in the first ten or twelve years of the present century, holding unconstitutional many acts of the legislature which interfered with the property rights and freedom of contract of the individual, seemed to most

1898 N. Y. 98 (1885).

19148 N. Y. 372, 42 N. E. 986 (1896).

of us sound law and socially desirable. If any doubt came as a result of the close decision by the Court of Appeals in the Lochner case,20 holding the bakeshop law constitutional, it was removed when the Supreme Court reversed that decision.21

In the zone of private law our attitude was the same. When Stokes v. Stokes22 said flatly that neither party to a contract was entitled to specific performance unless the other was likewise entitled, the doctrine was filed away in our minds as expressing a definite, easily understood and perfectly fair rule. That its implication ran counter to modern business practice did not occur to us any more than it did to the Court. Equally definite and fixed, although equally opposed to common business practice, was our understanding that a contract which contained no literal promise by one of the parties lacked mutuality and was unenforceable. The mere aroma of obligation would have seemed to us too thin to grasp. We had been taught to regard certainty in the law as essential. If the business practice of merchants did not conform to the rule of law, so much the worse for the merchants. Moreover, if one of our early clients had bought a wagon from a local dealer and one of its wheels had crumpled, thereby injuring him, it is very doubtful whether we should have advised him to sue the manufacturer. fact, if we had refreshed our knowledge of the law by looking at the opinion in Thomas v. Winchester, 23 we would have found from an illustration there used that there could be no recovery in such a case. "Misfortune to third persons," said the court, "not parties to the contract, would not be a natural and necessary consequence of the builder's negligence." This, of course, was contrary to the actual facts of life, but we, having been taught the distinction between legal and actual probability, accepted it as good law.24

In

The 19th century was a period of individualism. In politics, a minimum of government was best;25 in economics, free competition was essential; and in law the preservation of the rights of persons and property, including freedom of contract, was fundamental. Except as he himself had willed the existence of a relation to which the law attached a sanction, an individual was to be free from exaction; nor was he to be liable unless for a fault.26 Some limitations

20 People v. Lochner, 177 N. Y. 145, 69 N. E. 373 (1904).

21Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539, 49 L. Ed. 937 (1905). 22148 N. Y. 708, 43 N. E. 211 (1896).

236 N. Y. 397 (1852); nor would Devlin v. Smith, 89 N. Y. 470 (1882) have changed our view.

24 Cf. BOHLEN, STUDIES IN THE LAW OF TORTS (1925) 113.

25 People v. Coler, 166 N. Y. I at 14, 59 N. E. 716 (1901).

26 Cf. Cullen, C. J., in Ives v. South Buffalo Ry., 201 N. Y. 271 at 318, 94 N. E. 431 (1911).

on those rights were recognized as inevitable in a social state, but for that defect the courts consoled themselves by the thought, as Judge Earl pointed out in Losee v. Buchanan,27 that each individual was compensated by the similar operation of those limitations on the rights of his neighbor; and in any event, those rights were not to be unnecessarily infringed. It is needless to multiply instances.

With such a background we may forgive both the Court and ourselves for a failure fully to appreciate the social and economic forces involved and to yield at once to demands which meant the overturn of reasonably fixed and settled principles, so slowly and painfully worked out.28

Following those years of hesitation in the face of discontent and hostile criticism, came, and are still coming, certain definite results and certain tendencies. Among them are:

I. The setting up of administrative tribunals of many kinds, where, within limits, executive justice is administered, and, it is to be hoped, administered as the ordinary man conceives that it should be.29 The Court of Appeals has for the most part dealt liberally with the questions arising in this new field. For instance, in connection with the Workmen's Compensation Law, after a somewhat reactionary decision holding that proof of a claim by hearsay evidence alone was insufficient,30 came the Katz 31 the Heidemann,32 and other cases, giving broad and non-technical holdings on the question of what constitutes an accident arising out of employment.

2. Procedural Reform. This is a subject by itself, and may not be here considered beyond saying that both the Practice Act and the decisions under it have been subject to criticism more or less justified.33

3. A tendency, at least, toward a new philosophy of law, so far as the end or aim of law-and hence its growth-is concerned. The change may first be stated in the language of Dean Pound. The law, he says, now "appears to put emphasis upon social interests; upon the demands or claims or desires involved in social life rather than upon the freedom of will of the isolated individual."

2751 N. Y. 476, 484 (1873).

1134

28POUND, supra note 7 at 191; HOLMES, COLlected Works (1920), 294, 295. 29ROSCOE POUND, INTRODUCTION TO THE PHILOSOPHY OF LAW (1922) 135 et seq. Cuthbert W. Pound, The Judicial Power, (1922) 35 HARV. L. REV. 787.

30 Matter of Carroll, 218 N. Y. 435, 113 N. E. 507 (1916).

31232 N. Y. 420, 134 N. E. 330 (1922).

32230 N. Y. 305, 130 N. E. 302 (1920).

"See for one example out of many, (1926) 26 COL. L. REV. 30.

"POUND, SPIRIT of the Common Law (1921) 195; and see for a more complete statement, POUND, INTRODUCTION TO THE PHILOSOPHY OF LAW, (1922).

One who without previous training or study attempts to pursue and capture the ultimate concepts of law formulated by one juristic philosopher after another through most of recorded time will probably agree with Henry Adams who once cynically said that philosophy consisted chiefly in suggesting unintelligible answers to insoluble problems. Putting aside, then, the language of philosophy, this later trend may be described by saying that in the decision of cases the courts have come to put an increased emphasis on the conditions of actual life to which the law is to be applied, where such conditions are at all involved, and less upon the terms of the law itself. Or, if we go back to what seems to me to be a classic statement of the 19th century attitude, the opinion of Judge Earl in Losee v. Buchanan,35 the change may be defined as a greater willingness to promote the general welfare at the price of infringing on individual rights.

The effect of this tendency, so far as the Court of Appeals is concerned, has been admirably set forth by Judge Hiscock in his Quarterly article on The Progressiveness of New York Law.36 To the cases there discussed one or two others may be added for illustration, and then, as casting a back-light on the process of development, reference may be made briefly to several others where the Court was invited, but declined, to depart from settled rules.

In Schnitzer v. Lang,37 goods received by a buyer and laid away in January were not found to be of unmerchantable quality until August. Under various precedents, delay for an arbitrary period had come to be held unreasonable as matter of law, without reference to circumstances. The Court here brought the rule back to realities by holding that mere lapse of time was not alone the test. The question was whether under all the circumstances of the particular case, the delay was reasonable or unreasonable.

With that decision may be contrasted another38 where the question of reasonable time under a bill of lading not covered by federal law was, on grounds of public policy, tested, not by the particular circumstances, but by the time provision of the federal law. Consistency and certainty of rule were apparently balanced against the need of equity and fairness in particular cases, and the former were found weightier.3

39

35 Supra note 27.

36(1924) 9 CORNELL LAW QUARTERLY 371.

87239 N. Y. I, 145 N. E. 65 (1924).

38S & C. A. C. Co. v. P. R. Co., 237 N. Y. 287, 142 N. E. 666 (1923).

39 Cf. Jacobs & Young v. Kent, 230 N. Y. 239, 243, 129 N. E. 889 (1921) where a somewhat similar process led to an opposite result.

Robinson v. Robins Dry Dock & Repair Company1o seems to have been a frankly pragmatic holding. By a decision of the U. S. Supreme Court, the State Compensation Law was held not to apply to maritime employment. Upon the justifiable supposition that it did, plaintiff had previously been granted relief thereunder for the death of her husband. When the decision came down, her action at law was barred by the lapse of time. The legislature passed a law which provided that persons in plaintiff's plight might commence an action after the time limited by general law. Defendant here attacked its constitutionality, and a divided court held it valid under the police power. It was recognized that in some cases the bar of the statute is a property right; but so to hold here would, in the words of the opinion, be "contrary to all prevailing ideas of justice."

41

With that decision one may contrast Matter of Beach v. Velzy, in the same volume of reports, where, in a compensation proceeding, the Court refused to stretch the doctr ne of liability without fault beyond the limits fixed by the legislature, though the case was in a way one of hardship.

In St. Regis Paper Co. v. Hubbs & Hastings Paper Co.,42 a buyer of paper entered into a contract for a stated amount per year for two years. The price for the first three months was fixed by the contract, which further provided that future quarterly prices were to be fixed by mutual agreement, and if the parties did not agree, the contract should terminate. There came such failure, and the seller repudiated. To the argument that the contract carried with it the fundamental obligation on the seller in good faith to attempt to agree, the Court pointed to the literal language, and said it was merely an agreement to agree, which could not be enforced.

In another case there was a similar contract, which, however, provided that the price to be agreed upon should not be more than was then charged to large consumers by another seller. When the time came to fix the price, the buyer demanded deliveries accordingly. The seller refused to comply and repudiated. The holding was as before.43

40238 N. Y. 271, 144 N. E. 579 (1924).

41238 N. Y. 100, 143 N. E. 805 (1924).

42235 N. Y. 30, 138 N. E. 495 (1923). The trial judge, perhaps reflecting morality as it prevailed at least in theory, had told the jury that a broad good faith was written by the law into the contract. He later concluded he had been mistaken and set the verdict aside. The Appellate Division (201 App. Div. 397, 194 N. Y. Supp. 150, 4th Dept. 1922) thought the time was at hand when the law of the charge should prevail and reinstated the verdict.

43 Sun P. & P. Co. v. Remington P. & P. Co., 235 N. Y. 338, 139 N. E. 470 (1923).