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Dumas' first volume, points out that a careful study of its economic side has not heretofore been made.

M. Dumas had his first volume ready for publication in 1914, and M. Lyon-Caen's preface was written in May of that year. If the third Hague conference, then contemplated, had been held this volume would undoubtedly have been much discussed in connection with the proposal to abolish the whole right to take private property on the high sea as prize. But the World War broke out and the time did not seem appropriate for the publication of the work.

After the World War, M. Dumas renewed his study, and prepared a second volume, based upon the experiences of the War, to supplement his earlier work. This is published with a preface by M, Nicolas Politis, formerly Greek Secretary of State for foreign affairs, and a member of the faculty of law of the University of Paris.

In the World War the right of prize was asserted and exercised by England and her allies, and doctrines of blockade, of continuous voyage and of conditional contraband were even extended to meet the exigencies of the situation. One cannot, then, see a present tendency to abandon the right of prize. It permits, however, great injury to private property on the sea, and the author insists that, from the economic point of view, the injury to private interests of enemies and neutrals is in no way offset by any economic advantage to the victor. The author raises the moral and humanitarian issues involved in an attempt to starve a whole nation-noncombatants, women and children. He also points out the reprisals in occupied territory and in submarine warfare which resulted in the late war from the allies' activities against commerce with the enemy, and notices the argument, which is always sure to be made in time of peace for a larger navy, based upon the need to protect the country's commerce in the next war. While the author is cautious in his statements as to the military value of the right of prize, he feels that there is no proof that a war has ever been won by its use, or that the military advantage has offset the general economic injury.

These volumes by M. Dumas should find a place in every library of international law, and should be read with particular care by those interested in the economic phases of war.

Charles K. Burdick.


JUNE, 1927


The Decisions of the Court of Appeals in Recent Years and How They Have Affected Substantive Law*


No more delicate task comes to an Appellate Judge than the adjustment of the law of the past to the social needs of today. "All law is a compromise between the past and the present, between tradition and convenience." The efforts of the Court of Appeals during the last years to effect this compromise, to determine in each case what weight to give to stability-what weight to growth and progress-that is the subject of my discussion. For sometimes unconsciously, such a balance holds the final factor in many decisions. Stability and change are both essential. These opposites must be reconciled. How well the reconciliation has been effected we lawyers of today can not say. In this spot, more might have been done. There, too much. The experiment can proceed only by the method of trial and error. No man may predict success in advance. We can but bear in mind that the attempt must be made. Therefore, this is to be no criticism, but a history. I speak purely for myself. As Judge Pound stated lately in an article in the Harvard Law Review, "The suggestions are presented, not ex cathedra, but as one lawyer speaking to others on a controverted question, in order to widen the discussion, not to end it. Chancellor Kent said of his 'Battery Opinions' 'They cost nothing and bind no one'."2

Even if criticism were possible, a critic could influence our profession merely here and there. With the facts before them all men will not reach the same conclusion. There must be stability in the law. There must be growth. Yet where stability or where growth is the more important, this is the point of division. Some, attached to the past, will mourn every departure from the common law. They

*Address before Bar Association of the City of New York, March 24, 1927. †Judge of Court of Appeals of the State of New York.


2Pound, The Judicial Power (1922) 35 Harv. L. Rev. 787.

may not completely agree with Mr. Justice Blackstone in the well known case of Perrin v. Blake. "Whatever their parentage," he says, speaking of certain technical rules, "they are now adopted by the common law of England, incorporated into its body, and so interwoven with its policy that no court of justice in this Kingdom has either the power or (I trust) the inclination to disturb them." Even conservatives of today are not all ready to go to such a length. They may better agree with the modified view of that distinguished lawyer, Judge Dillon-some of us may remember him lecturing in the old Columbia Law School on Great Jones Street. Judge Dillon said, back in 1864: "We have conducted our examination of this question, fully impressed with the conviction that it is dangerous to innovate, although it must be admitted to be sometimes necessary to do so, and are gratified in the belief that the conclusion we have reached neither involves the introduction into the law of evidence of any new principle nor the subverting of any old ones."4

But, these conservatives say, the precedents contained in the reports, although they now amount, as Mr. Justice Stone has pointed out, to about 18,500 volumes and increase each year by about 350 more, and the logical deductions to be gathered from them, are to guide the courts to a correct decision in every case. Here and there injustice may result, but certainty is the main consideration.


Other men, seeing the needs of our expanding life, impressed with the new relationships caused by modern civilization and modern business minimize the applicability of ancient customs. They quote Bryce. Courts are not to be blind "to the truth that the first business of law is to subserve the well being of the people and to win their confidence as well as command their obedience." They quote our late great Chief Judge. "The administration of the law is a practical matter.... Where possible it must with reasonable flexibility adjust itself to new and changing conditions and in accordance with recognized principles must attempt to solve the problems of life in a well ordered, fair and reasonable way which will secure the approval of well informed and intelligent opinion." There is, they add, a considerable percentage of ill-decided cases. Even many

of those that represented the law of the day, no longer should be held to bind us. Certainty is of less importance, if courts are to

31 HARGRAVE, LAW TRACTS 489, 498 (1772).

4County v. Ingalls, 16 Iowa 81, 85 (1864).

"Stone, Law Simplification (1923) 23 COL. L. REV. 319.

Supra note 1, at 635.

"Hiscock, Progressiveness of New York Law (1924) 9 Cornell LAW QUARTERLY


retain public confidence, than decisions in each particular case, which do justice then and there. Not only do they call for statutory change, but they ask the courts to abandon ancient landmarks to reach that result.

There is a basis for each view. The truth may lie between the two extremes. Pragmatism is often an answer to our troubles. Not a philosophical theory, complete and logical and flawless. Not a rule hedged about with exceptions meaningless today. Some compromise that on the whole works well.

Many of you are familiar with the lectures of Chief Judge Cardozo at Yale University where he speaks of the two tendencies. We must have certainty that the individual may so regulate his life as to keep within the bounds of law; that the lawyer may give advice with assurance; that the judge may be guided to his decisions. So we appeal to precedents, and draw logical deductions from them which we apply to modern conditions. Or when the precedents are too numerous, we crystalize them into Codes and again start on a new series of decisions which in turn become precedents for the future. Thus is certainty preserved. But a changeless law is a sign of decay. It is not the law of the Medes and Persians "which altereth not" that marks a growing civilization. New situations continually arise, to which old principles fit badly or not at all; to which logical inferences from these principles cause absurd results. The legislature may act. Usually it does not. Then what are the courts to do? Are they to follow old paths? Are they to cut new trails? Certainty or growth? When and where and how?

No man, I think, may give an answer always applicable. A generalization of Dean Pound gives slight aid. Some branches of the law, as inheritance, real estate and commercial contracts, call for the greater stability. Rules as to torts permit of change with greater freedom. Still we are carried but a short way. A particular case is to be decided. What theory is to govern?

Here is ground for the statesman-perhaps for the prophetrather than for the judge. It is the most serious question that confronts an appellate court. As statesmen differ in their views of governmental problems, so will judges in the results reached by them. How and when certainty should be abandoned will depend upon their conception of the needs and ends of the law.

The praetor with his edicts, until they too hardened into rules, was free to follow his ideas of natural justice. The chancellors, until they too became bound by precedent, might correct by their injunctions abuses caused by the letter of the common law. No such wide

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