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THE NATURE OF THE 
 JUDICIAL PROCESS 
 
 THE ADDRESSES CONTAINED IN THIS BOOK WERE 
 DELIVERED IN THE WILLIAM L. STORRS 
 LECTURE SERIES, 1921, BEFORE THE 
 LAW SCHOOL OF YALE UNIVER-~ 
 SITY, NEW HAVEN, 
 CONNECTICUT 
 

 
 STORRS LECTURES 
 
 PUBLISHED BY YALE UNIVERSITY PRESS 
 
 THE REFORM OF LEGAL PROCEDURE. By 
 Moorfield Storey. 
 
 THE JUDICIARY AND THE PEOPLE. By 
 Frederick N. Judson. 
 
 CONCERNING Justice. By Lucilius A. 
 Emery. 
 
 WoMAN’sS SUFFRAGE BY CONSTITUTIONAL 
 AMENDMENT. By Henry St. George 
 Tucker. ; 
 
 Uniform in style with the Storrs Lectures 
 
 INTERNATIONAL ARBITRATION AND PRo- 
 CEDURE. By Robert C. Morris, with a 
 foreword by President Taft. 
 
THE NATURE OF THE 
 JUDICIAL PROCESS 
 
 BY 
 BENJAMIN N. CARDOZO, LL.D. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 Na 
 
 
 
 
 
 
 
 
 
 
 
 
 
 NEW HAVEN: YALE UNIVERSITY PRESS 
 LONDON: HUMPHREY MILFORD 
 OXFORD UNIVERSITY PRESS 
 MDCCCCXXII 
 
COPYRIGHT, 1921, 
 BY YALE UNIVERSITY PRESS 
 
 Published December, 1921. 
 Second Printing, June, 1922. 
 

 
 IN MEMORIAM 
 
 THIS VOLUME IS PUBLISHED IN MEMORY OF 
 ARTHUR P. McKINSTRY 
 DIED, NEW YORK CITY, JULY 21, 1921 
 
 Born in Winnebago City, Minnesota, on Decem- 
 ber 22, 1881, he was graduated from Yale College 
 in 1905, and in 1907 received the degree of 
 LL.B. magna cum laude from the Yale Law 
 School, graduating at the head of his class. 
 Throughout his career at Yale he was noted both 
 for his scholarship and for his active interest in 
 debating, which won for him first the presidency 
 of the Freshman Union and subsequently the 
 presidency of the Yale Union. He was also Class 
 Orator in 1905, and vice-president of the Yale 
 Chapter of Phi Beta Kappa. 
 
 Following his graduation from the School of 
 Law he entered upon the practice of his pro- 
 fession in New York City and early met with the 
 success anticipated for him by his friends,—his 
 firm, of which he was the senior member, being 
 recognized at the time of his death as among 
 the most prominent of the younger firms in the 
 city. He was counsel for the Post-Graduate 
 Hospital of New York, the Heckscher Founda- 
 
IN MEMORIAM 
 
 tion for Children, of which he was also a trustee, 
 and from 1912 to 1914 served as associate coun- 
 sel to the Agency of the United States in the 
 American and British Claims Arbitration. By 
 his untimely death the bar of the City of New 
 York lost a lawyer outstanding for his ability, 
 common sense, conscientiousness, and high sense 
 of justice; and Yale University lost an alumnus 
 of whom she was proud, who gave freely of his 
 time and thought to his class of 1905, to the 
 development of the Yale School of Law, and to 
 the upbuilding of the Yale University Press, 
 which he served as counsel. 
 
Contents 
 
 Lecture I. Introduction. The Method of 
 Philosophy Ri NAPS ere Rta Gy" 
 
 Lecture IJ. The Methods of History, 
 Tradition and Sociology. . 
 
 Lecture III. The Method of Sociology. 
 The Judge as a Legislator . 
 
 Lecture IV. Adherence to Precedent. The 
 Subconscious Element in the Judicial 
 Process. Conclusion . 
 
 51 
 
 142 
 

 
THE NATURE OF THE 
 JUDICIAL PROCESS 
 
 Mercrure I. Introduction. The 
 Method of Philosophy 
 
 ’ \HE work of deciding cases goes on every 
 
 day in hundreds of courts throughout 
 the land. Any judge, one might suppose, would 
 find it easy to describe the process which he had 
 followed a thousand times and more. Nothing 
 could be farther from the truth. Let some in- 
 telligent layman ask him to explain: he will not 
 go very far before taking refuge in the excuse 
 that the language of craftsmen is unintelligible 
 to those untutored in the craft. Such an excuse 
 may cover with a semblance of respectability an 
 otherwise ignominious retreat. It will hardly 
 serve to still the pricks of curiosity and con- 
 
 science. In moments of introspection, when there 
 
 9 
 
INTRODUCTION 
 
 is no longer a necessity of putting off with a 
 show of wisdom the uniniiatel interlocutor, the 
 troublesome problem will recur, and press for a 
 solution. What is it that I do when I decide a 
 case? To what sources of information do I ap- 
 peal for guidance? In what proportions do I 
 permit them to contribute to the result? In what 
 proportions ought they to contribute? If a prece- 
 dent is applicable, when do I refuse to follow it? 
 If no precedent is applicable, how do I reach the 
 rule that will make a precedent for the future? 
 If I am seeking logical consistency, the symmetry 
 of the legal structure, how far shall I seek it? At 
 what point shall the quest be halted by some 
 discrepant custom, by some consideration of the 
 social welfare, by my own or the common stand- 
 _ards of justice and morals? Into that strange 
 compound which is brewed daily in the caldron 
 of the courts, all these ingredients enter in vary- 
 ing proportions. I am not concerned to inquire 
 whether judges ought to be allowed to brew such 
 a compound at all. I take judge-made law_ as one 
 
 of the existing realities of life. There, before us, 
 
 IO 
 
| INTRODUCTION 
 is the brew. Not a judge on the bench but has 
 
 had a hand in the making. The elements have not 
 come together by chance. Some principle, how- 
 ever unavowed and inarticulate and subcon- 
 scious, has regulated the infusion. It may not 
 ‘have been the same principle for all judges at 
 any time, nor the same principle for any judge 
 at all times. But a choice there has been, not a 
 submission to the decree of Fate; and the con- 
 siderations and motives determining the choice, 
 even if often obscure, do not utterly resist analy- 
 sis. In such attempt at analysis as I shall make, 
 there will be need to distinguish between the 
 conscious and the subconscious. I do not mean 
 that even those considerations and motives which — 
 I shall class under the first head are always in 
 consciousness distinctly, so that they will be 
 recognized and named at sight. Not infrequently 
 they hover near the surface. They may, however, 
 with comparative readiness be isolated and 
 tagged, and when thus labeled, are quickly ac- 
 knowledged as guiding principles of conduct. 
 More subtle are the forces so far beneath the 
 
 II 
 
INTRODUCTION 
 
 surface that they cannot reasonably be classified 
 as other than subconscious. It is often through 
 these subconscious a judges are kept 
 consistent with themselves, and inconsistent 
 with one another. We are reminded by William 
 James in a telling page of his lectures on Prag- 
 matism that every one of us has in truth an 
 underlying philosophy of life, even those of us 
 to whom the names and the notions of philosophy 
 are unknown or anathema. There is in each of 
 us a stream of tendency, whether you choose to 
 call it philosophy or not,’ which gives coherence 
 
 and direction to thought and action. Judges can- 
 
 not escape that current any more than other 
 
 mortals. All their lives, forces which they do not 
 recognize and cannot name, have been tugging 
 at them—inherited instincts, traditional beliefs, 
 acquired convictions; and the resultant is an out- 
 look on life, a conception of social needs, a sense 
 in James’s phrase of “the total push and pressure 
 of the cosmos,” which, when reasons are nicely 
 
 balanced, must determine where choice shall fall. 
 
 1Cf. N. M. Butler, “Philosophy,” pp. 18, 43. 
 
 I2 
 
INTRODUCTION 
 
 In this mental background every problem finds 
 its setting. We may try to see things as ob- 
 jectively as we ioe | None the less, we can 
 never see them with any eyes except our own. 
 To that test they are all brought—a form of 
 pleading or an act of parliament, the wrongs of 
 paupers or the rights of princes, a village or- 
 dinance or a nation’s charter. 
 
 fl have little hope that I shall be able to state 
 the formula which will rationalize this process for | 
 myself, much less for others. We must apply to 
 the study of judge-made law that method of 
 quantitative analysis which Mr. Wallas has ap- 
 plied with such fine results to the study of poli- 
 tics.? A richer scholarship than mine is requisite 
 to do the work aright. But until that scholarship 
 is found and enlists itself in the task, there may 
 be a passing interest in an attempt to uncover 
 the nature of the process by one who is himself 
 an active agent, day by day, in keeping the 
 process alive. That must be my apology for 
 
 these introspective searchings of the spirit. 
 
 2“Human Nature in Politics,” p. 138. 
 
 Awe 
 ae a a 
 ote Sar, 
 2 Bei 
 ae eae 
 
 Maw ioks 22. Ss 
 i 1 4 fan k ua 
 
®nopuction 
 
 Before we can determine the proportions of a 
 blend, we must know the ingredients to be 
 blended. Our first inquiry should therefore be: 
 ( Where does the judge find the law which he, 
 ' embodies in his judgment? There are times 
 
 when the source is obvious. The rule that fits 
 
 : ‘\ the case may be supplied by the constitution or 
 
 by statute. If that is so, the judge looks no 
 
 farther. The correspondence ascertained, his duty 
 
 is to obey. The constitution overrides a statute, | 
 but a statute, if consistent with the constitution, 
 overrides the law of judges. In this sense, judge 
 made law is secondary and subordinate to the 
 law that is made by legislators. It is true that | 
 codes and statutes do not render the judge super- 
 
 fluous, nor his work perfunctory and mechanical. 
 There are gaps to be filled. There are doubts and. 
 ambiguities to be cleared.|\There are hardships 
 
 and wrongs to be mitigated if not avoided. In-\ 
 
 
 
 terpretation is often spoken of as if it were noth- 
 ing but the search and the discovery of a mean-) 
 ing which, however obscure and latent, had none 
 the less a real and ascertainable pre-existence in 
 
 14 
 
 
 
IN TRODUCHON 
 
 the legislator’s mind. The process is, indeed, 
 that at times, but it is often something more. 
 The ascertainment of intention may be the least 
 
 of a judge’s troubles in ascribing meaning to a 
 
 statute. “The fact is,” says Gray in his lectures . 
 
 on the “Nature and Sources of the Law,’ “that 
 the difficulties of so-called interpretation arise 
 when the legislature has had no meaning at 
 all; when the question which is raised on 
 the statute never occurred to it; when what 
 the judges have to do is, not to determine 
 what the legislature did mean on a point which 
 was present to its mind, but to guess what it | 
 would have intended on a point not present to its 
 mind, if the point had been present.”* So Briitt:° 
 “One weighty task of the system of the applica- 
 
 tion of law consists then in this, to make more 
 
 eas 
 
 profound the discovery of the latent meaning of 
 positive law/ Much more important, however, is 
 
 the second task which the system serves, namely 
 
 8 Sec. 370, p. 165. 
 
 #Cf. Pound, “Courts and Legislation,” 9 Modern 
 Legal Philosophy Series, p. 226. 
 
 5“Die Kunst der Rechtsanwendung,” p. 72. 
 
 lead 
 
 T5 
 
x 
 
 | INTRODUCTION 
 ) the filling of the gaps which are found in every! 
 
 positive law in greater or less measure.” You may | 
 call this process legislation, if you will. In any \ 
 event, no system of jus scriptum has been able 
 to escape the need of it. Today a great school of 
 continental jurists is pleading for a still wider 
 freedom of adaptation and construction. The 
 statute, they say, is often fragmentary and ill- 
 considered and unjust. The judge as the inter- 
 preter for the community of its sense of law and 
 order must supply omissions, correct uncertain- 
 ties, and harmonize results with justice through 
 a method of free decision—<“libre recherche 
 scientifique.” That is the view of Gény and 
 Ehrlich and Gmelin and others.* Courts are to | 
 
 “search for light among the social elements of | 
 
 Tn i na <r, 
 
 every kind that are the living force behind the | 
 facts they deal with.’’ The power thus put in 
 their hands is great, and subject, like all power, 
 to abuse; but we are not to flinch from granting 
 it. In the long run “there_is_no guaranty of 
 
 6 “Science of Legal Method,” 9 Modern Legal Philoso- 
 phy Series, pp. 4, 45, 65, 72, 124, 130, 159. 
 7 Gény, “Méthode d’Interprétation et Sources en droit 
 
 16 
 
INTRODUCTION 
 
 justice,” says Ehrlich,* “except the n 
 
 of the judge.” The same problem¢ of method, 
 the same contrasts between the letter and 
 the spirit, are living problems in our own 
 land and law. Above all in the field of constitu-_ 
 tional law, the method of free decision has be- | 
 come, T think, the do dominant tone t today. The great 
 generalities of the constitution have a content 
 and a significance that vary from age to age. The 
 method of free decision sees through the tran- 
 sitory particulars and reaches what is permanent 
 behind them. Interpretation, thus enlarged, be- 
 comes more than the ascertainment of the mean- 
 ing and intent of lawmakers whose collective will 
 has been declared. It supplements the declara- 
 tion, and fills the vacant spaces, by the same 
 processes and methods that have built up the ] 
 (cary law. Codes and other statutes may 
 
 privé positif,” vol. II, p. 180, sec. 176, ed. 1919; transl. 
 9 Modern Legal Philosophy Series, p. 45. 
 
 &P. 65, supra; “Freie Rechtsfindung und freie Rechts- 
 wissenschaft,” 9 Modern Legal Philosophy Series. 
 
 9 Cf. Gnaeus Flavius (Kantorowicz), “Der Kampf um 
 Rechtswissenschaft,” p. 48: “Von der Kultur des Richters 
 hangt im letzten Grunde aller Fortschritt der Rechtsent- 
 wicklung ab.” 
 
 17 
 
INTRODUCTION 
 threaten the judicial function with repression 
 and disuse and atrophy. The function flourishes 
 
 and persists by virtue of the human need to 
 
 which it steadfastly responds. Justinian’s pro- 
 
 hibition of any commentary on the product of his 
 codifiers is remembered only for its futility.*° 
 
 I will dwell no further for the moment upon 
 the significance of constitution and statute a: 
 sources of the law. The work of a judge in in! 
 terpreting and developing them has indeed its 
 problems and its difficulties, but they are prob- 
 lems and difficulties not different in kind of 
 measure from those besetting him in other fields. 
 I think they can be better studied when those 
 fields have been explored. Sometimes the rule of 
 constitution or of statute is clear, and then the 
 difficulties vanish. Even when they are present, 
 
 they lack at times some of that element of mys- 
 
 __tery which accompanies creative energy. We 
 
 ¥ 
 5 
 % 
 - wt Pa 
 e Bon 
 OP aad oe a 
 F 
 
 statute are silent, and the judge must look 4 
 
 reach the land of Bake when constitution ‘and 
 
 10 Gray, “Nature and Sources of the Law,” sec. 395) 
 Muirhead, “Roman Law,” pp. 399, 400. 
 
 8 
 
 
 
INTRODUCTION 
 
 the common law for the rule that fits the case. \ 
 
 He is the “living oracle of the law” in Black- 
 stone’s vivid phrase. Looking at Sir Oracle in 
 action, viewing his work in the.dry.light of 
 -Tealism, how does he set about his task? 
 
 The first thing he does is to compare the case 
 before him with the precedents, whether stored 
 -in his mind or hidden in the books. I do not mean 
 that precedents are ultimate sources of the law, 
 supplying the sole equipment that is needed for 
 the legal armory, the sole tools, to borrow Mait- 
 land’s phrase,** “in the legal smithy.”. Back of 
 precedents are the basic juridical conceptions 
 which are the postulates of judicial reasoning, 
 and farther back are the habits of life, the in- 
 stitutions of society, in which those conceptions 
 had their origin, and which, by a process of 
 interaction, they have modified in turn.*? None 
 
 the less, in a system so highly developed as our 
 
 11 Introduction to Gierke’s “Political Theories of the 
 Middle Age,” p. viii. 
 
 12 Saleilles, “De Ia Personnalité Juridique,” p. 45; 
 Ehrlich, “Grundlegung der Soziologie des Rechts,” pp. 
 34, 35; Pound, “Proceedings of American Bar Assn. 
 1910,” p. 455. 
 
 19 
 
 (¥) 
 
' first step is to examine and compare them. If 
 
 INTRODUCTION 
 
 own, precedents have so covered the ground that 
 they fix the point of departure from which the } 
 labor of the judge begins. Almost invariably, his 
 they are plain and to the point, there may be 
 need of nothing more! Stare dectsis is at least the \ 
 everyday working rule of our law. I shall have | 
 something to say later about the propriety of re- 
 laxing the rule in exceptional conditions. But un- | 
 less those conditions are present, the work of — 
 deciding cases in accordance with precedents that 
 plainly fit them is a process similar in its nature © 
 to that of deciding cases in accordance with a 
 statute. It is a process of search, comparison, and : 
 little more. Some judges seldom get beyond that 
 process in any case. Their notion of their duty is 
 to match the colors of the case at hand against ’ 
 the colors of many sample cases spread out upon ! 
 their desk. The sample nearest in shade supplies — 
 the applicable rule. But, of course, no system of — 
 
 living law can be evolved by such a process, and 
 
 no judge of a high court, worthy of his office, 
 
 views the function of his place so narrowly. If 
 
 20 
 
 
 
INTRODUCTION 
 
 that were all there was to our calling, there would 
 be little of intellectual interest about it. The man 
 who had the best card index of the cases would 
 also be the wisest judge. Tt is when the colors do 
 
 not match, when the references in the index fail, 
 
 when there is no decisive precedent, that the \ 
 
 serious business of the judge begins. He must , 
 
 then fashion law for the litigants before him. In 
 fashioning it for them, he will be fashioning it for 
 others. The classic statement is Bacon’s: “For 
 many times, the things deduced to judgment may 
 be meu i and vn when the reason and con- 
 sequence thereof may trench to point of estate.”* 
 The sentence of today will make the right and 
 wrong of tomorrow. If the judge is to pronounce 
 it wisely, some principles of selection there must 
 be to guide him among all the potential judg- 
 ments that compete for recognition. 
 
 In the life of the mind as in life elsewhere, 
 there is a tendency toward the reproduction of 
 kind. Every judgment has a generative power. 
 It begets in its own image. Every precedent, in 
 
 18 “Essay on Judicature.” 
 
 21 
 
 \0 
 
INTRODUCTION 
 
 the words of Redlich, has a “directive force for 
 future cases of the same or similar nature.” 
 Until the sentence was pronounced, it was as 
 yet in equilibrium. Its form and content were 
 uncertain. Any one of many principles might 
 lay hold of it and shape it. Once declared, it 
 is a new stock of descent. It is charged with 
 vital power. It is the source from which new 
 principles or norms may spring to shape sen- 
 tences thereafter. If we seek the psychological 
 basis of this tendency, we shall find it, I suppose, 
 in _habit.** Whatever its psychological basis, it is 
 one of the living forces of our law. Not all the 
 progeny of principles begotten of a judgment sur- 
 vive, however, to maturity. Those that cannot 
 prove their worth and strength by the test of ex- 
 perience, are sacrificed mercilessly and thrown 
 _, into the| void. |The common.law. does. not. work 
 from pre-established truths of universal and in- 
 
 flexible validity to conclusions derived from them 
 
 14 Redlich, “The Case Method in American Law 
 Schools,” Bulletin No. 8, Carnegie Foundation, p. 37. + 
 
 15 McDougall, “Social Psychology,” p. 354; J. C. 
 Gray, “Judicial Precedents,” 9 Harvard L. R. 27. 
 
 22 
 
INTRODUCTION 
 
 deductively. Its method is inductive, and it draws + 
 its generalizations from particulars, | The process * 
 
 has been admirably stated by Munroe Smith: “In 
 their effort to give to the social sense of justice 
 articulate expression in rules and in principles, 
 the method of the lawfinding experts has always 
 been experimental. The rules and principles of 
 case law have never been treated as final truths, 
 but as working hypot hypotheses, continually retested in 
 those great laboratories of the law, the courts of 
 justice. Every new case is an experiment; and if 
 the accepted rule which seems applicable yields 
 a result which is felt to be unjust, the tule is 
 reconsidered. It may not be modified at once, 
 for the attempt to do absolute justice in every 
 single case would make the development and 
 maintenance of general rules impossible; but if 
 1 rule continues to work injustice, it will even- 
 tually be reformulated. The principles themselves 
 are continually retested; for if the rules derived 
 from a principle do not work well, the principle 
 tself must ultimately be re-examined.”?¢ t 
 
 16 Munroe Smith, “Jurisprudence,” Columbia Uni- 
 
 23 
 
 " 
 
 r 
 
INTRODUCTION 
 
 The way in which this process of retesting and 
 reformulating works, may be followed in an ex- 
 ample. Fifty years ago, I think it would have | 
 been stated as a general principle that A. may 
 
 conduct his business as he pleases, even though 
 
 the purpose is to cause loss to B., unless the act 
 
 involves the creation of a nuisance.*’ Spite 
 fences were the stock illustration, and the exemp- 
 tion from liability in such circumstances was 
 supposed to illustrate not the exception, but the 
 rule.** Such a rule may have been an adequate 
 
 working principle to regulate the relations be- 
 
 tween individuals or classes in a simple or homo- 
 
 \\geneous community. With the growing com- 
 
 ——> > 
 
 / plexity of social relations, its inadequacy was 
 
 . 
 
 \ revealed. As particular controversies multiplied 
 
 and the attempt was made to test them by the 
 
 versity Press, 1909, p. 21; cf. Pound, “Courts and Legis- 
 lation,” 7 Am. Pol. Science Rev. 361; 9 Modern Legal 
 Philosophy Series, p. 214; Pollock, “Essays in Juris- 
 prudence and Ethics,” p. 246. 
 
 17 Cooley, “Torts,” rst ed., p. 93; Pollock, “Torts,” 
 roth ed., p. 21. 
 
 18 Phelps v. Nowlen, 72 N. Y. 39; Rideout v. Knox! 
 148 Mass. 368. 
 
 24 
 
 > 
 ie 1 — 
 ne 
 
INTRODUCTION 
 
 old principle, it was found that there was some- 
 thing wrong in the results, and this led to a re- 
 formulation of the principle itself. Today, most 
 judges are inclined to say that what was once 
 thought to be the exception is the rule, and what 
 was the rule is the exception. A. may never do 
 anything in his business for the purpose of injur- 
 ing another without reasonable and just excuse.*° 
 There has been a new generalization which, ap- 
 plied to new particulars, yields results more in 
 harmony with past particulars, and, what is still 
 more important, more consistent with the social 
 welfare. This work of modification is gradual. It 
 goes on inch by inch. Its effects must be measured 
 by decades and even centuries. Thus measured, 
 they are seen to have behind them the power 
 and the pressure of the moving glacier. | 
 
 We are not likely to underrate the force that 
 has been exerted if we look back upon its work. 
 “There is not a creed which is not shaken, not 
 
 an accredited dogma which is not shown to be 
 
 19 Lamb v. Cheney, 227 N. Y. 418; Aikens v. Wis- 
 consin, 195 U. S. 194, 204; Pollock, “Torts,” supra. 
 
 25 
 
INTRODUCTION 
 questionable, not a received tradition which does 
 not threaten to dissolve.”*° Those are the words 
 of a critic of life and letters writing forty 
 years ago, and watching the growing scepticism 
 of his day. I am tempted to apply his words to 
 the history of the law. Hardly a rule of today 
 but may be matched by its opposite of yesterday. 
 
 eel 
 
 
 
 Absolute liability for one’s acts is today the 
 exception; there must commonly be some tinge 
 of fault, whether willful or negligent. Time was, 
 however, when absolute liability was the rule. 
 Occasional reversions to the earlier type may be 
 found in recent legislation.” Mutual promises 
 give rise to an obligation, and their breach to a 
 
 right of action for damages. Time was when the 
 
 20 Arnold, “Essays in Criticism,” second series, p. 1. 
 
 21 Holdsworth, “History of English Law,” 2, p. 41; 
 Wigmore, “Responsibility for Tortious Acts,” 7 Harvard 
 L. R. 315, 383, 441; 3 Anglo-Am. Legal Essays 474; 
 Smith, “Liability for Damage to Land,” 33 Harvard 
 L. R. 551; Ames, “Law and Morals,” 22 Harvard L. R. 
 97, 99; Isaacs, “Fault and Liability,” 31 Harvard L. R. 
 954. 
 
 22Cf. Duguit, “LesggTransformations générales du 
 droit privé depuis le Napoléon,” Continental Legal 
 Hist. Series, vol. XI, pp. I2™ 126, SECS. 40, 42. 
 
 26 
 
INTRODUCTION | 
 obligation and the remedy. were unknown unless 
 the promise was under seal.2* ‘Rights of action 
 may be assigned, and the buyer prosecute them 
 to judgment though he bought for purposes of 
 suit. Time was when the assignment was im- 
 possible, and the maintenance of the suit a crime. 
 It is no basis today for an action of deceit to 
 show, without more, that there has been the 
 breach of an executory promise; yet the breach 
 of an executory promise came to have a remedy 
 in our law because it was held to be a deceit.?* 
 These changes or most of them have been 
 wrought by judges. The men who wrought them 
 used the same tools as the judges of today. The 
 changes, as they were made in this case or that, 
 may not have seemed momentous in the making. 
 
 The result, however, when the process was pro- 
 longed throughout the years, has been not merely \ AN 
 
 to supplement or modify; it has been to revolu- ! 
 
 23 Holdsworth, supra, 2, p. 72; Ames, “History of 
 Parol Contracts prior to Assumpsit,” 3 Anglo-Am. Legal 
 Essays 304. 
 
 24 Holdsworth, supra, 3, pp. 330, 336; Ames, “History 
 of Assumpsit,” 3 Anglo-Am. Legal Essays 275, 276. 
 
 27 
 
INTRODUCTION 
 
 tionize and transform. For every tendency, one 
 seems to see a counter-tendency; for every rule 
 its antinomy. Nothing is stable’ Nothing ab- 
 solute. All_is fluid and changeable. There is an 
 endless “becoming.” We are back with Heraclitus. 
 That, I mean, is the average or aggregate im- 
 pression which the picture leaves upon the mind. 
 NY Doubtless in the last three centuries, some lines, 
 once wavering, have become rigid. We leave ‘ay 
 to legislatures today, and less perhaps to 
 
 pee 
 
 judges. Yet even now ‘there is change from 
 
 decade to decade. The glacier still moves. 
 
 _-¢-» In this perpetual flux, the problem which os 
 
 | fronts the judge is in reality a twofold one: he 
 
 must first extract from the precedents the under-_ 
 
 he. 
 
 x lying principle, the ratio decidendi; he must then 
 / determine the path or direction along which the 
 ‘\principle is to: move and develop, if it is not to 
 wither and die. ~ 
 
 The first branch of the problem is the one to 
 
 which we are accustomed to address ourselves 
 
 | 
 
 25 F. C. Montague in “A Sketch of Legal History,” 
 
 Maitland and Montague, p. 161. 
 28 
 
INTRODUCTION 
 
 more consciously than to the other. Cases do not 
 unfold their principles for the asking. They yield 
 up their kernel slowly and painfully. The in- 
 _ stance cannot lead to a generalization till we 
 know it as it is. That in itself is no easy task. 
 For the thing adjudged comes to us oftentimes 
 swathed in obscuring \dicta,, which must be | 
 stripped off and cast aside. Judges differ greatly 
 in their reverence for the illustrations and com- 
 ments and side-remarks of their predecessors, to 
 make no mention of their.own. All agree that 
 there may be dissent when the opinion is filed. 
 Some would seem to hold that there must be none 
 a moment thereafter. Plenary inspiration has 
 then descended upon the work of the majority. 
 No one, of course, avows such a belief, and yet 
 sometimes there is an approach to it in conduct. 
 I own that it is a good deal of a mystery to me 
 how judges, of all persons in the world, should 
 put their faith in dicta. A brief experience on the 
 bench was enough to reveal to me all sorts of 
 cracks and crevices and loopholes in_my_own. 
 
 opinions when picked up a few months after de- 
 
 29 
 
tf 
 
 INTRODUCTION 
 livery, and reread with due contrition. ‘The per- 
 suasion that one’s own infallibility is a myth 
 leads. by easy stages and with somewhat greater 
 satisfaction to a refusal to ascribe infallibility to 
 others. But dicta are not always ticketed as 
 such, and one does not recognize them always 
 at a glance. There is the constant need, as every 
 law student knows, to separate the accidental 
 and the non-essential from the essential and in- 
 herent. Let us assume, however, that this task | 
 has been achieved, and that the precedent is 
 known as it really is. Let us assume too that the 
 principle, latent within it, has been skillfully ex- 
 tracted and accurately stated. Only half or less 
 than half of the work has yet been done. The 
 problem remains to fix the bounds and the 
 tendencies of development and growth, to set 
 the directive force in motion along the right path 
 
 at the parting of the ways. 
 
 ¢ ‘The directive.force of a principle may be 
 
 exerted along the line of logical progression; 
 this I will call the rule of analogy or the method 
 
 a 
 
 act philosophy; along the line of historical .de- 
 
 30 
 
% THE METHOD OF PHILOSOPHY 
 ~velopment; this I will call the method of -evolu- \ 
 tion; along the line of the customs of.the.com- |. 
 munity; this I will call the method ‘of tradition; { 
 along the lines of justice, morals and social wel- 
 fare, the mores of the day; and this I will call 
 the method of sociology.(<| | 
 I have put first among the principles of selec- 
 tion to guide our choice of paths, the rule of 
 analogy or the method of philosophy. In putting 
 it first, I do hot mean to rate it as most im- 
 portant. On the contrary, it is often sacrificed to 
 others. I have put it first because it has, I think, 
 a certain presumption in its favor. Given a mass 
 of particulars, a congeries of judgments on re- 
 lated topics, the principle that unifies and 
 rationalizes them hasa tendency, and a legitimate 
 one, to project and extend itself to new cases 
 within the limits of its capacity to unify and 
 rationalize. It has the primacy that comes from 
 natural and orderly and logical succession. 
 Homage is due to it over every competing prin- 
 ciple that is unable by appeal to history or 
 
 tradition or policy or justice to make out a 
 
 31 
 
THE METHOD OF PHILOSOPHY 
 better right. All sorts of deflecting forces may 
 
 appear to contest its sway and absorb its power. 
 At least, it is the heir presumptive. A pretender 
 to the title will have to fight his way. 
 
 Great judges have sometimes spoken as if 
 the principle of philosophy, i.e., of logical de- 
 velopment, meant little or nothing in our law. 
 Probably none of them in conduct was ever true 
 to such a faith. Lord Halsbury said in Quinn v. 
 Leathem, 1901, A. C. 495, 506: “A case is only 
 an authority for what it actually decides. I en- 
 tirely deny that it can be quoted for a proposi- 
 tion that may seem to follow logically from it. 
 Such a mode of reasoning assumes that the law 
 is necessarily a logical code, whereas every 
 lawyer must acknowledge that the law is not 
 always logical at all.’’?* All this may be true, but 
 we must not press the truth too far. Logical 
 consistency does not cease to be a good because 
 
 it is not the supreme good. Holmes has told us 
 
 26 Cf. Bailhache, J., in Belfast Ropewalk Co. v. 
 Bushell, 1918, 1 K. B. 210, 213: “Unfortunately or 
 fortunately, I am not sure which, our law is not a 
 science.” 
 
 32 
 
THE METHOD OF PHILOSOPHY 
 
 in a sentence which is now classic that “the life 
 of the law has not been logic; it has been experi- 
 ence.”?? But Holmes did not tell us that logic 
 is to be ignored when experience is silent. I am 
 not to mar the symmetry of the legal structure 
 by the introduction of inconsistencies and ir- 
 relevancies and artificial exceptions unless for 
 some sufficient reason, which will commonly be 
 some consideration of history or custom or policy 
 or justice. Lacking such a reason, I must be 
 logical, just as I must be impartial, and upon 
 like grounds. It will not do to decide the same 
 question one way between one set of litigants and 
 the opposite way between another. “If a group/ 
 _of cases involves the same point, the parties ex- 
 pect the same decision. It would be a gross in- 
 justice to decide alternate cases on opposite 
 principles. If a case was decided against me 
 yesterday when I was defendant, I shall look for 
 the same judgment today if I am plaintiff. To 
 decide differently would raise a feeling of Rac 
 
 ment and wrong in my breast; it would be an | 
 
 27 “The Common Law,” p. 1. 
 
 33 
 
THE METHOD OF PHILOSOPHY 
 
 infringement, material and moral, of myrights.””° 
 Everyone feels the force of this sentiment when 
 two cases are the same. ‘Adherence to precedent 
 must then be the rule rather than the exception 
 if litigants are to have faith in the even-handed 
 administration of justice in the courts; A senti- 
 ment like in kind, though different in degree, is 
 at the root of the tendency of precedent to ex- 
 tend itself along the lines of logical develop- 
 ment.”° No doubt the sentiment is powerfully 
 reinforced by what is often nothing but an in- 
 tellectual passion for elegantia juris, for sym- 
 metry of form and substance.*° That is an ideal 
 which can never fail to exert some measure of 
 attraction upon the professional experts who — 
 make up the lawyer class. To the Roman law- 
 yers, it meant much, more than it has meant 
 
 to English lawyers or to ours, certainly more 
 
 -28W. G. Miller, “The Data of Jurisprudence,” p. 
 335; cf. Gray, “Nature and Sources of the Law,” sec. 
 420; Salmond, “Jurisprudence,” p. 170. 
 
 29 Cf. Gény, “Méthode d’interprétation et Sources 
 en droit privé positif,” vol. II, p. 119. ’ 
 30W. G. Miller, supra, p. 281; Bryce, “Studies in 
 
 History and Jurisprudence,” vol. II, p. 629. 
 
 34 
 
THE METHOD OF PHILOSOPHY 
 than it has meant to clients. “The client,” 
 says Miller in his “Data of Jurisprudence,”* 
 “cares little for a ‘beautiful’ case! He wishes: 
 it settled somehow on the most favorable terms 
 he can obtain.” Even that is not always true. But 
 as a system of case law develops, the sordid 
 controversies of litigants are the stuff out of 
 which great and shining truths will ultimately. 
 be shaped. The accidental and the transitory will 
 yield the essential and the permanent. The judge 
 who moulds the law by the method of philosophy 
 may be satisfying an intellectual craving for 
 symmetry of form and substance. But he is doing 
 something more. He is keeping the-law-true in 
 its response to a deep-seated and imperious senti- 
 nent, nly experts perhaps may be able to gauge 
 ‘the quality of his work and appraise its signifi- 
 cance. But their judgment, the judgment of the 
 lawyer class, will spread to others, and tinge the 
 common consciousness and the common faith. 
 In default of other tests, the method of philoso- 
 
 phy must remain the organon of the courts if 
 : neh P. tT. | 
 
 35 
 
THE METHOD OF PHILOSOPHY 
 
 chance and favor are to be excluded, and the 
 affairs of men are to be governed with the serene 
 and impartial uniformity which is of the essence 
 of the idea of law. 
 
 You will say that there is an intolerable vague- 
 ness in all this. If the method of philosophy is 
 to be employed in the absence of a better one, 
 some test of comparative fitness should be fur- 
 nished. I hope, before I have ended, to sketch, 
 though only in the broadest outline, the funda- 
 mental considerations by which the choice of 
 methods should be governed. In the nature of 
 things they can never be catalogued with preci- 
 sion. Much must be left to that deftness in the 
 use of tools which the practice of an art develops. 
 A few hints, a few suggestions, the rest must be 
 trusted to the feeling of the artist. But for the 
 moment, I am satisfied to establish the method 
 of philosophy as one organon among several, 
 leaving the choice of one or the other to be 
 talked of later. Very likely I have labored unduly 
 to establish its title to a place so modest. Above 
 all, in the Law School of Yale University, the 
 
 36 : 
 
THE METHOD OF PHILOSOPHY 
 title will not, be challenged. I say that because 
 
 in the work of a brilliant teacher of this school, 
 the late Wesley Newcomb Hohfeld, I find im- | 
 pressive recognition of the importance of this 
 method, when kept within due limits, and some 
 - of the happiest illustrations of its legitimate em- 
 ployment. His treatise on ““Fundamental Concep- 
 tions Applied in Judicial Reasoning” is in reality 
 a plea that fundamental conceptions be analyzed 
 more clearly, and their philosophical implica- 
 tions, their logical conclusions, developed more 
 consistently. I do not mean to represent him as 
 holding to the view that logical conclusions must 
 always follow the conceptions developed by 
 analysis. ‘“No one saw more clearly than he that 
 while the analytical matter is an indispensable 
 tool, it is not an all-sufficient one for the law- 
 yer.”*? “Fle emphasized over and over again” 
 that “analytical work merely paves the way for 
 other branches of jurisprudence, and that with- 
 
 out the aid of the latter, satisfactory solutions of 
 
 82 Introduction to Hohfeld’s Treatise by W. W. 
 Cook. 
 
 37 
 
THE METHOD OF PHILOSOPHY 
 
 legal problems cannot be reached.”** We must — 
 know where logic and philosophy lead even 
 though we may determine to abandon them for 
 other guides. The times will be many when we 
 can do no better than follow where they point. 
 
 Example, if not better than precept, may at 
 least prove to be easier. We may get some sense 
 of the class of questions to which a method is 
 adapted when we have studied the class of ques- 
 tions to which it has ‘been applied. Let me — 
 give some haphazard illustrations of conclusions 
 adopted by our law through the development of 
 legal conceptions to logical conclusions. A. agrees 
 to sell a chattel to B. Before title passes, the 
 chattel is destroyed. The loss falls on the seller 
 who has sued at law for the price.** A. agrees 
 to sell a house and lot. Before title passes, the 
 house is destroyed. The seller sues in equity for 
 specific performance. The loss falls upon the 
 
 83 Professor Cook’s Introduction. 
 
 34 Higgins v. Murray, 73 N. Y. 252, 254; 2 Williston 
 
 on Contracts, sec. 962; N. Y. Personal Prop. Law, sec. 
 1038. 
 
 38 
 
THE METHOD OF PHILOSOPHY 
 buyer.** That is probably the prevailing view, 
 
 though its wisdom has been sharply criticized.** 
 These variant conclusions are not dictated by 
 variant considerations of policy or justice. They 
 are projections of a principle to its logical out- 
 come, or the outcome supposed to be logical. 
 Equity treats that as done which ought to be 
 done. Contracts for the sale of land, unlike most 
 contracts for the sale of chattels, are within the 
 jurisdiction of equity. The vendee is in equity 
 the owner from the beginning. Therefore, the 
 burdens as well as the benefits of ownership 
 shall be his. Let me take as another illustration 
 of my meaning the cases which define the rights 
 of assignees of choses in action. In the discussion 
 of these cases, you will find much conflict of 
 opinion about fundamental conceptions. Some 
 tell us that the assignee has a legal ownership.*” 
 
 Others say that his right is purely equitable.*® 
 
 35 Paine v. Meller, 6 Ves. 349, 352; Sewell v. Under- 
 hill, 197 N. Y. 168; 2 Williston on Contracts, sec. 931. 
 
 86 2 Williston on Contracts, sec. 940. 
 
 87 Cook, 29 Harvard L. R. 816, 836. 
 
 88 Williston, 30 Harvard L. R. 97; 31 ibid. 822. 
 
 39 
 
THE METHOD OF PHILOSOPHY 
 
 Given, however, the fundamental conception, all 
 agree in deducing its consequences by methods 
 in which the preponderating element is the 
 method of philosophy. We may find kindred 
 illustrations in the law of trusts and contracts 
 and in many other fields. It would be wearisome 
 to accumulate them. 
 
 The directive force of logic does not_always 
 exert itself, however, along a single and unob- 
 structed.path. One principle or precedent, pushed 
 to the limit of its logic, may point to one con- 
 clusion; another principle or precedent, followed 
 with like logic, may point with equal certainty to 
 another. In this conflict, we must choose between 
 the two.paths, selecting one or other, or per- 
 haps striking out upon a third, which will be the 
 resultant of the two forces in combination, or will 
 represent the mean between extremes. ; Let me 
 take as an illustration of such conflict the famous 
 case of Riggs v. Palmer, 115 N. Y. 506. That 
 case decided that a legatee who had murdered 
 
 his testator would not be permitted by a court 
 
 of equity to enjoy the benefits of the will. Con- 
 
 40 
 
THE METHOD OF PHILOSOPHY 
 
 flicting principles were there in competition for 
 the mastery. One of them prevailed, and van- 
 quished all the others. There was the principle 
 of the binding force of a will disposing of the 
 estate of a testator in conformity with law. That 
 _ principle, pushed to the limit of its logic, seemed 
 to uphold the title of the murderer. There was 
 the principle that civil courts may not add to 
 the pains and penalties of crimes. That, pushed 
 to the limit of its logic, seemed again to uphold 
 his title. But over against these was another 
 principle, of greater generality, its roots deeply 
 fastened in universal sentiments of justice, the 
 principle that no man should profit from his own 
 inequity or take advantage of his own wrong. 
 The logic of this principle prevailed over the 
 logic of the others. I say its logic prevailed. The 
 thing which really interests us, however, is why 
 and how the choice was made between one logic 
 and another. In this instance, the reason is not 
 obscure. One path was followed, another closed, 
 because of the conviction in the judicial mind 
 that the one selected led to justice, Analogies and 
 4I 
 
THE METHOD OF PHILOSOPHY 
 
 precedents and the principles behind them were 
 brought together as rivals for precedence; in the 
 end, the principle that was thought to be most 
 fundamental, to represent the larger and deeper 
 social interests, put its competitors to flight. I 
 am not greatly concerned about the particular 
 formula through which justice was attained. 
 Consistency was preserved, logic received its 
 tribute, by holding that the legal title passed, but 
 that it was subjected to a constructive trust.*® 
 A constructive trust is nothing but “the formula 
 through which the conscience of equity finds ex- 
 pression.”*° Property is acquired in such cir- 
 cumstances that the holder of the legal title may 
 not in good conscience retain the beneficial in- 
 terest. Equity, to express its disapproval of his 
 conduct, converts him into a trustee.*+ Such 
 formulas are merely the remedial devices by 
 which a result conceived of as right and just is 
 
 39 Ellerson v. Westcott, 148 N. Y. 149, 154; Ames, 
 “Lectures on Legal History,” pp. 313, 314. 
 
 40 Beatty v. Guggenheim Exploration Co., 225 N. Y. 
 380, 386. 
 
 41 Beatty v. Guggenheim Exploration Co., supra; 
 
 Ames, supra. 
 
 42 
 
THE METHOD OF PHILOSOPHY 
 
 made to square with principle and with the sym- 
 metry of the legal system. What concerns me now 
 is not the remedial device, but rather the under- ’ 
 lying motive, the indwelling, creative energy, 
 which brings such devices into play. The mur- 
 _ derer lost the legacy for which the murder was 
 committed because the social interest served by 
 erusine to permit the cfiminal to profit by his 
 crime is greater than that served by the preserva- 
 tion and enforcement of legal rights of ownership. 
 _ My illustration, indeed, has brought me ahead 
 of my story. The judicial process is there in 
 microcosm. We go forward with our’ logic, with 
 our analogies, with our philosophies, till we reach 
 a certain point. At first, we have no trouble with 
 the paths; they follow the same lines. Then they 
 begin to diverge, and we must make a choice be- 
 tween them. History or custom. or social_utility 
 or some compelling sentiment.of justice or.some- 
 ‘times_perhaps.a semi-intuitive. apprehension. of 
 the pervading spirit.of our.law, must come to the 
 rescue of the anxious.judge, and tell him where 
 to go. 
 : 43 
 
THE METHOD OF PHILOSOPHY 
 
 It is easy to accumulate examples of the 
 process—of the constant checking and testing of 
 philosophy by justice, and of justice by philoso- \ 
 phy. Take the rule which permits recovery with 
 compensation for defects in cases of substantial, 
 though incomplete performance. We have often 
 applied it for the protection of builders who in 
 trifling details and without evil purpose have de- 
 parted from their contracts. The courts had 
 some trouble for a time, when they were deciding 
 such cases, to square their justice with their logic. 
 Even now, an uneasy feeling betrays itself in 
 treatise and decision that the two fabrics do not 
 fit. As I had occasion to say in a recent case: 
 “Those who think more of symmetry and logic 
 in the development of legal rules than of practi- 
 cal adaptation to the attainment of a just result” 
 remain “troubled by a classification where the 
 lines of division are so wavering and blurred.’’*? 
 I have no doubt that the inspiration of the rule 
 is a mere sentiment of justice. That sentiment 
 asserting itself, we have proceeded to surround it 
 
 42 Jacobs & Youngs, Inc. v. Kent, 230 N. Y. 239. 
 
 44 
 
THE METHOD OF PHILOSOPHY 
 with the halo of conformity to precedent. Some 
 judges saw the unifying principle in the law of 
 quasi:contracts. Others saw it in the distinction 
 between dependent and independent promises, or 
 between promises and conditions. All found, how- 
 ever, in the end that there was a principle in the 
 legal armory which, when taken down from the 
 wall where it was rusting, was capable of furnish- 
 ing a weapon for the fight and of hewing a path 
 to justice. Justice reacted upon logic, sentiment 
 upon reason, by guiding the choice to be made 
 between one logic and another. Reason in its 
 turn reacted upon s‘ntiment by purging it of 
 what is arbitrary, by checking it when it might 
 otherwise have been extravagant, by relating it 
 to method and order and coherence and tradi- 
 tion.** 
 
 In this conception of the method of logic or 
 philosophy as one organon among several, I find 
 nothing hostile to the teachings of continental 
 ‘ jurists who would dethrone it from its place and 
 
 43 Cf. Hynes v. N. Y. Central R. R. Co. (231 N. Y. 
 2209, 235). 
 
 45 
 
THE METHOD OF PHILOSOPHY 
 
 power in systems of jurisprudence other than our 
 own. They have combated an evil which has 
 touched the common law only here and there, 
 and lightly. I do not mean that there are not 
 fields where we have stood in need of the same 
 lesson. In some part, however, we have been 
 saved by the inductive process through which our 
 case law has developed from evils and dangers 
 inseparable from the development of Jaw, upon 
 the basis of the jus scriptum, by a process of 
 deduction.*t Yet even continental jurists who 
 emphasize the need of other methods, do not ask 
 us to abstract from lega, principles all their 
 fructifying power. The misuse of logic or philoso- 
 phy begins when its method and its ends are 
 treated as supreme and final. They can never be 
 banished altogether. “Assuredly,” says Francois 
 Gény,*° “there should be no question of banish- 
 ing ratiocination and logical methods from the 
 
 44 “Notre droit public, comme notre droit privé, est 
 un jus scriptum” (Michoud, “La Responsibilité de l'état 
 & raison des fautes de ses agents,” Revue du droit 
 public, 1895, p. 273, quoted by Gény, vol. I, p. 40, 
 sec. 19). 
 
 45° Op. ‘cit. VOL. 1, p.- 8275 Secs ee ~ 
 
 46 
 
THE METHOD OF PHILOSOPHY 
 
 science of positive law.” Even general principles 
 may sometimes be followed rigorously in the de- 
 duction of their consequences. “The abuse,” he 
 says, “consists, if I do not mistake, in envisaging 
 ideal conceptions, provisional and purely sub- 
 _ jective in their nature, as endowed with a per- 
 manent objective reality. And this false point of 
 view, which, to my thinking, is a vestige of the 
 absolute realism of the middle ages, ends in con- 
 fining the entire system of positive law, @ priori, 
 within a limited number of logical categories, 
 which are predetermined in essence, immovable 
 in basis, governed by inflexible dogmas, and thus 
 incapable of adapting themselves to the ever 
 varied and changing exigencies of life.” 
 
 In law, as in every other branch of knowl- 
 edge, the truths.given by induction tend to form 
 the premises for new deductions. The lawyers 
 and the judges of successive generations do not 
 repeat for themselves the process of verification, 
 any more than most of us repeat the demonstra- _ 
 tions of the truths of astronomy or physics. A 
 
 stock of juridical conceptions and formulas is 
 
 47 
 
THE METHOD OF PHILOSOPHY 
 
 developed, and we take them, so to speak, ready- 
 made. Such fundamental conceptions as contract 
 and possession and ownership and testament and 
 many others, are there, ready for use. How they 
 came to be there, I do not need to inquire. I am 
 writing, not a history of the evolution of law, 
 but a sketch of the judicial process applied to 
 law full grown. These fundamental conceptions 
 once attained form the starting point from which 
 are derived new consequences, which, at first 
 tentative and groping, gain by reiteration a new 
 permanence and certainty. In the end, they be- 
 come accepted themselves as fundamental an 
 axiomatic. So it is with the growth from ea 
 dent to precedent. The implications of a decision 
 may in the beginning be equivocal. New cases 
 by commentary and exposition extract the es- 
 sence. At last there emerges a rule or principle 
 which becomes a datum, a point of departure, © 
 from which new lines will be run, from which 
 new courses will be measured. Sometimes the rule 
 or principle is found to have been formulated too 
 narrowly or too broadly, and has to be reframed. 
 
 48 
 
THE METHOD OF PHILOSOPHY 
 
 Sometimes it is accepted as a postulate of later 
 reasoning, its origins are forgotten, it becomes a 
 new stock of descent, its issue unite with other 
 strains, and persisting permeate the law. You 
 may call the process one of analogy or of logic 
 or of philosophy as you please.\Its essence in any 
 event is the derivation of a consequence from a 
 rule or a principle or a precedent which, accepted 
 as a datum, contains implicitly within itself the 
 germ of the conclusion) In all this, I do not use 
 the word philosophy in any strict or formal 
 sense. The method tapers down from the syllo- 
 gism at one end to mere analogy at the other. » 
 Sometimes the extension of a precedent goes to 
 the limit of its logic. Sometimes it does not go so 
 far. Sometimes by a process of analogy it is 
 carried even farther. That is a tool which no 
 system of jurisprudence has been able to dis- 
 card.*® A rule which has worked well in one field, 
 or which, in any event, is there whether its work- 
 ings have been revealed or not, is carried over 
 into another. Instances of such a process I group 
 46 Ehrlich, “Die Juristische Logik,” pp. 225, 227. 
 49 
 
THE METHOD OF PHILOSOPHY 
 
 under the same heading as those where the nexus 
 of logic is closer and more binding.*” At bottom 
 and in their underlying motives, they are phases 
 of the same method. They are inspired by the 
 same yearning for consistency, for certainty, 
 for uniformity of plan and structure. They have 
 their roots in the constant striving of the mind 
 for a larger and more inclusive unity, in which 
 differences will be reconciled, and abnormalities 
 will vanish. | 
 
 47 Cf, Gény, op. cit., vol. II, p. raz, sec. 165; also 
 vol. I, p. 304, sec. 107. 
 
 50 
 
 a 
 
Lecture II. The Methods of 
 History, Tradition and 
 Sociology 
 
 Y \HE method of philosophy comes in com- 
 
 petition, however, with other tendencies 
 which find their outlet in other methods. One of 
 these is the historical method, or the method of 
 evolution. The tendency of a principle to expand 
 itself to the limit of its logic may be counteracted 
 by the tendency to confine itself within the 
 limits of its history. I do not mean that even 
 then the two methods are always in opposition. 
 A classification which treats them as distinct is, 
 doubtless, subject to the reproach that it involves 
 a certain overlapping of the lines and principles 
 of division. Very often, the effect of history is 
 to make the path of logic clear." Growth may(™ 
 be logical whether it is shaped by the principle 
 
 1Cf, Holmes, “The Path of the Law,” 10 Harvard 
 L. R. 465. 
 
 51 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 of consistency with the past or by that of con- 
 sistency with some pre-established norm, some 
 general conception, some “indwelling, and creative 
 principle.”? The directive force of the precedent 
 may be found either in the events that made 
 it what it is, or in some principle which enables 
 us to say of it that it is what it ought to be. 
 Development may involve either an investigation 
 of origins, or an ‘eliort ) of ‘pure reason. Both 
 methods have their logic. For the moment, how- 
 ever, it will be convenient to identify the method 
 of history with the one, and to confine the 
 method of logic or philosophy to the other. Some 
 conceptions of the law owe their existing form 
 almost exclusively to history. They are not to 
 be understood except as historical growths. In the 
 development of such principles, history is likely 
 to predominate over logic or pure reason. Other 
 conceptions, though they have, of course, a his- 
 tory, have taken form and shape to a larger 
 extent under the influence of reason or of com- 
 
 2 Bryce, “Studies in History and Jurisprudence,” vol. 
 II, p. 609. 
 
 52 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 parative jurisprudence. They are part of the jus 
 gentium. In the development of such principles 
 logic is likely to predominate over history. An 
 illustration is the conception of juristic or cor- 
 porate personality with the long train of conse- 
 quences which that conception has engendered. 
 (Sometimes 1 the subject matter will lend itself as 
 naturally to one method as to another. In such 
 circumstances, considerations of custom or utility 
 will often be present to regulate the choice. A re- 
 siduum will be left where the personality of the 
 judge, his taste, his training or his bent of mind, 
 may prove the controlling factor./I do not mean 
 that the directive force of history, even where 
 its claims are most.assertive; confines.the law. of 
 the future to uninspired repetition of. the law 
 of the present and the.past. I mean simply that 
 history, in illuminating the past, illuminates the 
 
 present, and in illuminating the present, illu- 
 
 minates the future. / “If at one time it seemed “~ 
 
 likely,” says Maitland,* “that the historical spirit 
 (the spirit which strove to understand the classi- 
 3 “Collected Papers,” vol. III, p. 438. 
 53 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 cal jurisprudence of Rome and the Twelve 
 Tables, and the Lex Salica, and law of all ages 
 and climes) was fatalistic and inimical to reform, 
 that time already lies in the past. . . . Nowadays 
 we may see the office of historical research as that 
 of explaining, and therefore lightening, the pres- 
 sure that the past must exercise upon the present, 
 and the present upon the future. Today we study 
 the day before yesterday, in order that yesterday 
 may not paralyze today, and today may not 
 
 paralyze tomorrow.” 
 
 ”™” Let me speak first of those fields where there 
 
 can be no progress without history. I think th 
 law of real property supplies the readiest ex+ 
 ample.* No lawgiver meditating a code of law: 
 conceived the system of feudal tenures. Histo 
 built up the system and the law that went with 
 it. Never by a process of logical deduction from 
 the idea of abstract ownership could we distin- 
 guish the incidents of an estate in fee simple from 
 those of an estate for life, or those of an estate 
 
 for life from those of an estate for years. Upon 
 
 *Techt v. Hughes, 229 N. Y. 222, 240. 
 54 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 these points, “a page of history is worth a volume 
 of logic.”" So it is wherever we turn in the forest 
 of the law of land. Restraints upon alienation, 
 the suspension of absolute ownership, contingent 
 remainders, executory devises, private trusts and 
 _ trusts for charities, all these heads of the law are 
 intelligible only in the light of history, and get 
 from history the impetus which must shape their 
 subsequent development. I do not mean that even 
 in this field, the method of philosophy plays no 
 part at all. Some of the conceptions of the land 
 law, once fixed, are pushed to their logical con- 
 clusions with inexorable severity. The point is 
 rather that the conceptions themselves have come 
 to us from without and not from within, that they 
 embody the thought, not so much of the present 
 as of the past, that separated from the past their 
 form and meaning are unintelligible and arbi- 
 trary, and hence that their development, in 
 order to be truly logical, must be mindful of their 
 origins. ‘In a measure that i is true of most of the 
 
 5 Holmes, J., in N. Y. Trust Co. v. Eisner, 256 U. S. 
 345, 349. 
 
 55 
 
 Wie, 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 conceptions of our law. Metaphysical principles 
 have seldom been their life. If I emphasize the 
 law of real estate, it is merely as a conspicuous 
 example. Other illustrations, even though less 
 conspicuous, abound. “The forms of action we 
 have buried” says Maitland,°® “but they still rule 
 us from their graves.” Holmes has the same 
 thought:* “If we consider the law of contract,” 
 he says, “we find it full of history. The distinc- 
 tions between debt, covenant and assumpsit are 
 merely historical. The classification of certain 
 obligations to pay money, imposed by the law 
 irrespective of any bargain as quasi-contracts, is 
 merely historical. The doctrine of consideration 
 is merely historical. The effect given to a seal is 
 to be explained by history alone.” The powers 
 and functions of an executor, the distinctions be- 
 ‘tween larceny and embezzlement, the rules of 
 venue and the jurisdiction over foreign trespass, 
 these are a few haphazard illustrations of growths 
 
 which history has fostered, and which history 
 
 6 “Equity and Forms of Action,” p. 296. 
 7™“The Path of the Law,” 10 Harvard L. R. 472. 
 
 56 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 must tend to shape. There are times when the 
 subject matter lends itself almost indifferently to 
 the application of one method or another, and the 
 predilection or training of the judge determines 
 the choice of paths. The subject has been pene- 
 tratingly discussed by Pound.* I borrow one of 
 
 his illustrations. Is a gift ofmovables inter vivos 
 
 
 
 
 
 effective without ry? The controversy raged 
 rs before it was set at rest. Some 
 judges relied on the analogy of the Roman Law. 
 Others upon the history of forms of conveyance 
 in our law. With some, it was the analysis of 
 fundamental conceptions, followed by the ex- 
 tension of the results of analysis to logical con- 
 clusions. The declared will to give and to accept 
 was to have that effect and no more which was 
 consistent with some pre-established definition 
 of a legal transaction, an act in the law. With 
 others, the central thought was not consistency 
 with a conception, the consideration of what 
 logically ought to be done, but rather consistency 
 
 8 “Juristic Science and the Law,” 31 Harvard L. R. 
 1047. 
 
 57 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 with history, the consideration of what had been 
 done. I think the opinions in Lumley v. Gye, 
 2 El. & Bl. 216, which established a right of 
 action against A. for malicious interference with 
 a contract between B. and C., exhibit the same 
 divergent strains, the same variance in emphasis. 
 Often, the two methods supplement each other. 
 Which method will predominate in any case, 
 may depend at times upon intuitions of con- 
 venience or fitness too subtle to be formulated, 
 too imponderable to be valued, too volatile to 
 be localized or even fully apprehended. Some- 
 times the prevailing tendencies exhibited in the 
 current writings of philosophical jurists may 
 sway the balance. There are vogues and fashions 
 in jurisprudence as in literature and art and 
 dress. But of this there will be more to say when 
 we deal with the forces that work subconsciously 
 in the shaping of the law. 
 
 _self history and philosophy do not serve to fix 
 
 a the direction of a principle, custom may step in. 
 
 When we speak of custom, we may mean more 
 things than one. “Consuetudo,” says Coke, “is 
 fin | 
 
 *% 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 one of the maine triangles of the lawes of Eng- 
 land; these lawes being divided into common 
 law, statute law and customs.’® Here common 
 law and custom are thought of as distinct. 
 Not so, however, Blackstone: “This unwritten 
 or Common Law is properly nm EH 
 into three kinds: (1) General customs, which 
 are the universal rule of the whole Kingdom, ' 
 -and form the Common Law, in its stricter 
 and more usual signification. (2) Particular cus- 
 toms, which for the most part affect only the 
 inhabitants of particular districts. (3) Certain 
 particular laws, which by custom ‘are adopted 
 and used by some particular courts of pretty 
 general and extensive jurisdiction.’ 
 Undoubtedly the creative energy Pain in 
 the development of common law is less today 
 
 than it was in bygone times.** Even in bygone 
 
 ® Coke on Littleton, 62a; Post v. Pearsall, 22 Wend. 
 440. 
 10 Blackstone, Comm., pp. 67, 68; Gray, “Nature and 
 Sources of the Law,” p. 266, sec. 598; Sadler, “The Rela- 
 tion of Custom to Law,” p. 50. 
 
 11Cf. Gray, supra, sec. 634; Salmond, “Jurispru- 
 dence,” p. 143; Gény, op. czt., vol. I, p. 324, sec. 111. 
 
 e 59 
 
bo a 
 
 = 
 
 HISTORY, TRADITION AND SOCIOLOGY 
 times, its energy was very likely exaggerated by 
 
 Blackstone and his followers. Today we recog- 
 nize,” in the words of Pound,** “that the custom 
 is a custom of judicial decision, not of popular 
 action.”’ It is “doubtful,” says Gray,’* “whether 
 at all stages of legal history, rules laid down by 
 judges have not generated custom, rather than 
 custom generated the rules.” In these days, at all 
 events, we look to custom, not so much for the 
 creation of new rules, but for the tests and stand 
 
 ards that are to determine how established rule 
 
 ~eshall be applied, When custom seeks to do more 
 
 than this, there is a growing tendency in the law 
 to leave development to legislation. Judges do not 
 feel the same need of putting the zmprimatur of 
 law upon customs of recent growth, knocking fér 
 entrance into the legal system,.and viewed 
 askance because of some novel aspect of form 
 or feature, as they would if legislatures were not 
 in frequent session, capable of establishing a 
 title that will be unimpeached and unimpeach- 
 
 12“Common Law and Legislation,’ 21 Harvard 
 L. R. 383, 406. 
 13 Supra, sec. 634. 
 
 60 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 able. But the power is not lost because it is 
 exercised with caution. “The law merchant,” 
 says an English judge, “is not fixed and stereo- 
 typed, it has not yet been arrested in its growth 
 by being moulded into a code; it is, to use the 
 - words of Lord Chief Justice Cockburn in Good- 
 win v. Roberts, L. R. 10 Exch. 346, capable of 
 being expanded and enlarged to meet the wants 
 of trade.”*} In the absence of inconsistent stat- 
 ute, new classes of negotiable instruments may 
 be created by mercantile practice.*> The obliga- 
 tions of public and private corporations may re- 
 tain the quality of negotiability, despite the pres- 
 ence of a seal, which at common law would de- 
 stroy it. “There is nothing immoral or contrary 
 to good policy in making them negotiable if the 
 necessities of commerce require that they should 
 be so. A mere technical dogma of the courts or 
 the common law cannot prohibit the commercial 
 world from inventing or issuing any species of 
 
 14 Edelstein v. Schuler, 1902, 2 K. B. 144, 154; cf. 
 Bechuanaland Exploration Co. v. London Trading 
 
 Bank, 1898, 2 Q. B. 658. 
 15 Cases, supra. 
 
 61 
 
HISTORY, TRADITION AND SOCIOLOGY 
 security not known in the last century.’** So, in 
 the memory of men yet living, the great inven- 
 tions that embodied the power of steam and 
 electricity, the railroad and the steamship, the 
 telegraph and the telephone, have built up new 
 customs and new law. Already there is a body 
 of legal literature that deals with the legal prob- 
 lems of the air. 
 
 It is, however, not so much in the making of 
 new rules as in the application of old ones that 
 the creative energy of custom most often mani- 
 fests itself today. General standards of right and 
 duty are established. Custom must determine 
 whether there has been adherence or departure. 
 My partner has the powers that are usual in 
 the trade. They may be so well known that the 
 courts will notice them judicially. Such for illus- 
 tration is the power of a member of a trading 
 firm to make or indorse negotiable paper in the 
 
 course of the firm’s business. *7 They may be 
 
 16 Mercer County v. Hacket, 1 Wall. 83; cf. Chase 
 Nat. Bank v. Faurot, 149 N. Y. 532. 
 17 Lewy v. Johnson, 2 Pet. 186. 
 
 62 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 such that the court will require evidence of 
 their existence.** The master in the discharge of 
 his duty to protect the servant against harm 
 must exercise the degree of care that is commonly 
 exercised in like circumstance by men of ordinary 
 prudence. The triers of the facts in determining 
 whether that standard has been attained, must 
 consult the habits of life, the everyday beliefs 
 and practices, of the men and women about 
 them. Innumerable, also, are the cases where the 
 course of dealing to be followed is defined by the 
 customs, or, more properly speaking, the usages, 
 of a particular trade or market or profession.’® 
 The constant assumption runs throughout the 
 law that the natural and spontaneous evolutions 
 of habit fix the limits of right and wrong. A slight 
 extension of custom identifies it with customary 
 morality, the prevailing standard of right con- 
 duct, the mores of the time.” This is the point - 
 
 18 First Nat. Bank v. Farson, 226 N. Y. 218. 
 
 19Trwin v. Williar, 110 U. S. 499, 513; Walls v. 
 Bailey, 49 N. Y. 464; 2 Williston on Contracts, sec. 
 
 649. 
 20 Cf. Gény, op. cit., vol. I, p. 319, sec. 110. 
 
 63 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 of contact between the method of tradition and 
 the method of sociology. They have their roots in 
 the same soil. Each method maintains the inter- 
 
 action between conduct and order, between life 
 
 @ and law. Life casts the moulds of conduct, which 
 will some day b fixed as law. Law preserves 
 
 the moulds, which have taken form and shape 
 \“ from life. 
 
 ra Three of the directive forces of our law, 
 % philosophy, history and custom, have now been 
 \S seen at work. We have gone far enough to ap- 
 \S preciate the complexity of the problem. We see 
 
 5 that to determine to be loyal to precedents and 
 C/ to the principles back of precedents, does not 
 carry us far upon the road. Principles are com- 
 
 »plex bundles. It is well enough to say that we 
 shall be consistent, but consistent with what? 
 Shall it be consistency with the origins of the 
 ‘rule, the course and tendency of development? 
 ‘Shall it be consistency with logic or philosophy 
 
 or the fundamental conceptions of jurisprudence 
 
 as disclosed by analysis of our own and foreign 
 
 ~... Systems? All these loyalties are possible. All have 
 64 
 
 ge aime 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 sometimes prevailed. How are we to choose be- 
 
 tween them? Putting that question aside, how do 
 
 - we choose between them?(Some concepts of the 
 
 law have been in a peculiar sense _ historical 
 growths. In such departments, history will tend 
 to give direction to development. In other depart- 
 ments, certain large and fundamental concepts, 
 which comparative jurisprudence shows to be 
 common to other highly developed systems, loom 
 up above all others. In these we shall give a 
 larger scope to logic and symmetry. A broad field 
 there also is in which rules may, with approxi- 
 mately the same convenience, be settled one way 
 or the other. Here custom tends to assert itself 
 as the controlling force in guiding the choice of 
 paths. Finally, when the social needs demand 
 one settlement rather than another, there are 
 times when we must bend symmetry, ignore his- 
 
 tory and sacrifice custom in the pursuit of other 
 
 and larger ends. 
 
 From history and philosophy and custom, we 
 
 pass, therefore, to the force which in our day 
 
 and generation is becoming the greatest of them ~~ f 
 
 65 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 “all, the power of social justice which finds its/ 
 
 
 
 
 7 outlet and expression in the method of sociology 
 ' The final cause of law is the welfare of society ) 
 The rule that misses its aim cannot per- 
 manently justify its existence. “Ethical consid- 
 erations can no more be excluded from the ad- 
 ministration of justice which is the end and 
 purpose of all civil laws than one can exclude 
 the vital air from his room and live.”?* Logic 
 and history and custom have their place. We 
 will shape the law to conform to them when 
 we may; but only within bounds. The oe 
 which the law serves will dominate them all. 
 There is an old legend that on one occasion God 
 prayed, and his prayer was “Be it my will that 
 my justice be ruled by my mercy.” That is a 
 prayer which we all need to utter at times when 
 the demon of formalism tempts the intellect with 
 the lure of scientific order. I do not mean, of 
 course, that judges are commissioned to set aside 
 existing rules at pleasure in favor of any other 
 
 t 
 
 21 Dillon, “Laws and Jurisprudence of England and 
 America,” p. 18, quoted by Pound, 27 Harvard L. R. 
 731; 733. 
 
 66 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 set of rules which they may hold to be expedient , .” ? 
 
 or wise mean that when they are called upon ca’ 
 
 to say how far existing rules are to be extended : 
 or restricted, they must let the welfare of nociety 
 fix the path, its direction and its distance. \We 
 _ are not to forget, said Sir George Jessel, in an 
 often quoted judgment, that there is this para- 
 mount public policy, that we are not lightly to 
 interfere with freedom of contract.** So in this 
 field, there may be a paramount public policy, 
 one that will prevail over temporary incon- 
 venience or occasional hardship, not lightly to 
 sacrifice certainty and uniformity and order and 
 coherence. All these elements must be considered. 
 They are to be given such weight as sound 
 judgment dictates. They are constituents of 
 that social welfare which it is our business to 
 discover.?* In a given instance we may find that 
 they are constituents of preponderating value. In 
 others, we may find that their value is subor- 
 dinate. We must appraise them as best we can. 
 
 22 Printing etc. Registering Co. v. Sampson, L. R. 
 19 Eq. 462, 465. 
 23 Cf. Briitt, supra, pp. 161, 163. 
 
 67 
 
 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 I have said that judges are not commissioned 
 _ to make and unmake rules at pleasure in ac- 
 cordance with changing views of expediency or 
 wisdom. Our judges cannot say with Hobbes: 
 “Princes succeed one another, and one judge 
 passeth, another cometh; nay heaven and earth 
 shall pass, but not one tittle of the law of nature 
 shall pass, for it is the eternal law of God. There- 
 fore, all the sentences of precedent judges that 
 have ever been, cannot altogether make a law 
 contrary to natural equity, nor any examples of 
 former judges can warrant an unreasonable sen- 
 tence or discharge the present judge of the trouble 
 of studying what is equity in the case he is to 
 judge from the principles of his own natural rea- 
 son.”?* Nearer to the truth for us are the words 
 of an English judge: “Our common law system 
 consists in applying to new combinations of cir- 
 cumstances those rules of law which we derive 
 from legal principles and judicial precedents, 
 
 and for the sake of attaining uniformity, con- 
 
 24 Hobbes, vol. II, p. 264; quoted by W. G. Miller, 
 “The Data of Jurisprudence,” p. 390. 
 
 68 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 sistency and certainty, we must apply those rules 
 when they are not plainly unreasonable and in- | 
 convenient to all cases which arise; and we are | 
 not at liberty to reject them and to abandon all 
 analogy to them in those in which they have not 
 _ yet been judicially applied, because we think that 
 the rules are not as convenient and reasonable as 
 we ourselves could have devised.’’”° This does not 
 mean that there are not gaps, yet unfilled, within 
 which judgment moves untrammeled. Mr. Jus- 
 tice Holmes has summed it up in one of his flash- 
 ing epigrams: KI recognize without hesitation: 
 that judges must and do legislate,.but they do so 
 only interstitially; they are confined from molar 
 to molecular motions. A common-law judge could 
 not say, I think the doctrine of consideration a 
 bit of historical nonsense and shall not enforce 
 it in my court.’’** This conception of the legisla- 
 tive power of a judge as operating between spaces 
 is akin to the theory of “gaps in the law” familiar 
 
 25Sir James Parke, afterwards Lord Wensleydale, 
 in Mirehouse v. Russell, 1 Cl. & F. 527, 546, quoted by 
 Ehrlich, “Grundlegung der Soziologie des Rechts” 
 [1913], p. 234; cf. Pollock, “Jurisprudence,” p. 323. 
 
 26 Southern Pacific Co. v. Jensen, 244 U.S. 205, 221. 
 
 69 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 to foreign | jurists.” “The general framework 
 furnished by the statute is to be filled in for 
 each case by means of interpretation, that is, 
 by following out the principles of the statute. 
 In every case, without exception, it is the busi- 
 ness of the court to supply what the statute 
 omits, but always by means of an interpretative 
 function.’’* If the statute is interpreted by the 
 method of “free decision,” the process differs in 
 degree rather than in kind from the process fol- 
 lowed by the judges of England and America in 
 the development of the common law. Indeed, Ehr- 
 lich in a recent book*® quotes approvingly an Eng- 
 lish writer, who says*° that “a code would not 
 except in a few cases, in which the law at pres- 
 
 ent is obscure, limit any discretion now pos- 
 
 27g Modern Legal Philosophy Series, pp. 159-163, 
 172-175; cf. Ehrlich, “Die juristische Logik,” 215, 216; © 
 Zitelmann, “Liicken im Recht,” 23; Britt, “Die Kunst 
 der Rechtsandwendung,” p. 75; Stammler, “Lehre von 
 dem Richtigen Rechts,” p. 271. 
 
 28 Kiss, “Equity and Law,” 9 Modern Legal Philoso- 
 phy Series, p. 161. 
 
 29“Grundlegung der Soziologie des Rechts” [1913], 
 Pp. 234. 
 8079 L.Q. R. 15. 
 
 70 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 sessed by the judges. It would simply change ; 
 the form of the rules by which they are bound.” 
 I think that statement overshoots the mark. The 
 fissures in the common law are wider than the 
 fissures in a statute, at least in the form of 
 statute common in England and the United 
 States. In countries where statutes are oftener 
 confined to the announcement of general prin- 
 ciples, and there is no attempt to deal with de- 
 tails or particulars, legislation has less tendency 
 to limit the freedom of the judge. That is why 
 in our own law there is often greater freedom of 
 choice in the construction of constitutions than in 
 that of ordinary statutes. Constitutions are more 
 likely to enunciate general principles, which must 
 
 be worked out and applied thereafter to particu- 
 
 lar conditions. What concerns us now, however; 
 
 is not the size of the gaps. It is rather the 
 principle that shall determine how they are to be 
 filled, whether their size be great or small. They’ 
 method of sociology in filling the..gaps,-puts~its 
 emphasis on_the-sacial_weliare. 
 
 \ Social welfare is a broad term. I use it to 
 
 71 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 cover many concepts more or less allied. It may 
 mean what is commonly spoken of as public . 
 policy, the good of the collective body. In such 
 cases, its demands are often those of mere ex- 
 pediency or prudence. It may mean on the other 
 hand the social gain that is wrought by ad- 
 herence to the standards of right conduct, which 
 find expression in the mores of the community. 
 In such cases, its demands are those of religion 
 or of ethics or of the social sense of justice, 
 whether formulated in creed or system, or im- 
 manent in the common mind. One does not 
 readily find a single term to cover these and 
 kindred aims which shade off into one another 
 by imperceptible gradations. Perhaps we might 
 fall back with Kohler** and Briitt®*? and Berolz- 
 heimer** on the indefinable, but comprehensive 
 something known as Kultur, if recent history had 
 not discredited it and threatened odium for 
 
 81 Enzyklopadie, Bd. 1, D. 10; Philosophy of Law, 12 
 Modern Legal Philosophy Series, p. 58. 
 
 82 Supra, p. 133, et seq. 
 
 33 “System des Rechts und Wirthschaftsphilosophie,” 
 Bd. 3, s. 28. 
 
 72 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 those that use it. I have chosen in its stead a 
 term which, if not precise enough for the philoso- 
 pher, will at least be found sufficiently definite 
 and inclusive to suit the purposes of the judge. 
 It is true, I think, today in every department 
 of the law that the social value of a rule has 
 become a test of growing pewer and impertance. 
 _ This truth is powerfully driven home to the 
 lawyers of this country in the writings of Dean 
 Pound. “Perhaps the most significant advance in 
 the modern science of law is the change from 
 the analytical to the functional attitude.’’** “The 
 emphasis has changed from the content of the 
 precept and the existence of the remedy to the 
 effect of the precept in action and the availa- 
 bility and efficiency of the remedy to attain 
 the ends for which the precept was devised.” 
 Foreign jurists have the same thought: “The 
 whole of the judicial function,” says Gmelin,** 
 
 84Pound, “Administrative Application of Legal 
 Standards,” Proceedings American Bar Association, 
 1919, Pp- 441, 449. 
 
 85 [bid., p. 451; cf. Pound, “Mechanical Jurispru- 
 dence,” 8 Columbia L. R. 603. 
 
 36 “Sociological Method,” transl., 9 Modern Legal 
 Philosophy Series, p. 131. 
 
 73 
 
 Me 
 * 
 %, 
 
HISTORY, TRADITION AND SOCIOLOGY 
 “has ... been shifted. The will of the State, ex- 
 
 pressed in decision and judgment is to bring 
 about a just determination by means of the 
 subjective sense of justice inherent in the judge, 
 guided by an effective weighing of the inter- 
 ests of the parties in the light of the opinions 
 generally prevailing among the community re- 
 garding transactions like those in question. The 
 determination should under all circumstances be 
 in harmony with the requirements of good faith 
 in business intercourse and the needs of practical 
 life, unless a positive statute prevents it; and in 
 weighing conflicting interests, the interest that 
 is better founded in reason and more worthy of 
 protection should be helped to achieve victory.’’** 
 “On the one hand,” says Gény,** “we are to 
 interrogate reason and conscience, to discover in 
 our inmost nature, the very basis of justice: on 
 
 the other, we are to address ourselves to social 
 
 87 Gmelin, supra; cf. Ehrlich, “Die juristische Logik,” 
 p. 187; Duguit, “Les Transformations du droit depuis le 
 Code Napoléon,” transl., Continental Legal Hist. Series, 
 vol. XI, pp. 72, 79. . 
 
 38 Op. cit., vol. II, p. 92, sec. 159. 
 
 74 
 
 saree S. 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 _ phenomena, to ascertain the laws of their har- 
 mony and the principles of order which they 
 exact.” And again:*° “Justice and general utility, / 
 such will be the two objectives that will direct 
 our course.” 
 
 All departments.of the law. have been touched 
 _and elevated by this spirit. In some, however, 
 the method of sociology works in harmony with 
 the method of philosophy or of evolution or of 
 tradition. Those, therefore, are the fields where 
 logic and coherence and consistency must still 
 be sought as ends. In others, it seems to displace 
 the methods that compete with it. Those are the 
 fields where the virtues of consistency must yield 
 within those interstitial limits where judicial 
 power moves. In a sense it is true that we are 
 applying the method of sociology when we pur- 
 sue logic and coherence and consistency as the 
 greater social values. I am concerned for the 
 
 moment with the fields in which the method is 
 in antagonism to others rather than with those 
 
 in which their action is in unison. Accurate divi- 
 89 Vol. II, p. 91. 
 75 
 
f 
 
 HISTORY, TRADITION AND SOCIOLOGY 
 sion is, of course, impossible. A few broad areas | 
 may, however, be roughly marked as those in | 
 which the method of sociology has fruitful ap- | 
 
 plication. Let me seek some illustrations of its 
 
 9 workings. I will look for them first of all in the 
 
 - see 
 
 field of constitutional law, where the primacy 
 of this method is, I think, undoubted, then in 
 certain branches of private law where public 
 policy, having created rules, must have like 
 capacity to alter them, and finally in other fields 
 where the method, though less insistent and per- 
 vasive, stands ever in the background, and 
 emerges to the front when technicality or logic 
 or tradition may seem to press their claims un- 
 duly. Ry 
 
 I speak first of the constitution, and in par- 
 ticular of the great immunities with which it sur- 
 rounds the individual. No one shall be deprived 
 of liberty without due process of law. Here is a 
 concept of the greatest generality. Yet it is put 
 before the courts en bloc. Liberty is not defined. 
 Its limits are not mapped and charted. How 
 shall: they be known? Does liberty mean the 
 
 76 
 
HISTORY, TRADITION AND SOCIOLOGY 
 same thing for successive generations? May re- 
 straints that were arbitrary yesterday be useful 
 and rational and therefore lawful today? May 
 restraints that are arbitrary today become use- 
 ful and rational and therefore lawful tomorrow? 
 _ I have no doubt that the answer to these ques- 
 tions must be yes. There were times in our 
 judicial history when the answer might have been 
 no. Liberty was conceived of at first as something 
 static and absolute. The Declaration of Inde- 
 pendence had enshrined it. The blood of Revolu- 
 tion had sanctified it. The political philosophy 
 of Rousseau and of Locke and later of Herbert 
 Spencer and of the Manchester school of econo- 
 mists had dignified and rationalized it. Laissez 
 faire was not only a counsel of caution which 
 statesmen would do well to heed. It was a cate- 
 gorical imperative which statesmen, as well as 
 judges, must obey. The “nineteenth century 
 theory” was “‘one of eternal legal conceptions in- 
 volved in the very idea of justice and containing 
 potentially an exact rule for every case to be 
 
 reached by an absolute process of logical deduc- 
 77 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 tion.’”*° The century had not closed, however, 
 before a new political philosophy became re- 
 flected in the work of statesmen and ultimately 
 in the decrees of courts. The transition is inter- 
 estingly described by Dicey in his “Law and 
 Opinion in England.’** “The movement from 
 individualistic liberalism to unsystematic col- 
 lectivism” had brought changes in the social 
 order which carried with them the need of a new 
 formulation of fundamental rights and duties. 
 In our country, the need did not assert itself so 
 soon. Courts still spoke in the phrases of a 
 philosophy that had served its day.*? Gradually, 
 however, though not without frequent protest 
 and intermittent movements backward, a new 
 
 conception of the significance of constitutional 
 
 limitations in the domain of individual liberty, 
 
 emerged to recognition and to dominance. Judge 
 
 Hough, in an interesting address, finds the dawn 
 
 40 Pound, “Juristic Science and The Law,” 31 Har- 
 vard L. R. 1047, 1048. 
 
 41 Cf. Duguit, supra. 
 
 42 Haines, “The Law of Nature in Federal Decisions,” 
 25 Yale L. J. 617. 
 
 78 
 
 Pe 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 of the new epoch in 1883, when Hurtado v. 
 California, 110 U. S. 516, was argued.** If the 
 new epoch had then dawned, it was still ob- 
 scured by fog and cloud. Scattered rays of light 
 may have heralded the coming day. They were 
 not enough to blaze the path. Even as late as 
 1905, the decision in Lochner v. N. Y., 198 U. S. 
 45, still spoke in terms untouched by the light 
 of the new spirit. It is the dissenting opinion of 
 Justice Holmes, which men will turn to in the 
 future as the beginning of an era.** In the in- 
 stance, it was the voice of a minority. In prin- 
 ciple, it has become the voice of a new dispensa- 
 tion, which has written itself into law. “The 
 Fourteenth Amendment does not enact Mr. Her- 
 bert Spencer’s Social Statics.”** “A constitution € 
 is not intended to embody a particular economic 
 theory, whether of paternalism and the organic 
 relation of the citizen to the state, or of laissez 
 
 43 Hough, “Due Process of Law Today,” 32 Harvard 
 L. R. 218, 227. 
 
 44Cf. Hough, p. 232; also Frankfurter, ‘Const. 
 Opinions of Holmes, J.,” 29 Harvard L. R. 683, 687; 
 Ehrlich, “Die juristische Logik,” pp. 237, 2309. 
 
 45108 U. S. 75. 
 
 79 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 faire.”** “The word liberty in the Fourteenth 
 Amendment is perverted when it is held to pre- 
 vent the natural outcome of a dominant opinion, 
 unless it can be said that a rational and fair man 
 necessarily would admit that thestatute proposed 
 would infringe fundamental principles as they 
 have been understood by the traditions of our 
 people and our law.”*? That is the conception of 
 liberty which is dominant today.** It has its 
 critics even yet,** but its dominance is, I think, 
 assured. No doubt, there will at times be differ- 
 ence of opinion when a conception so delicate is 
 applied to varying conditions.®° At times, indeed, 
 the conditions themselves are imperfectly dis- 
 closed and inadequately known. Many and in- 
 sidious are the agencies by which opinion is 
 poisoned at its sources. Courts have often been 
 
 sii) eet JB 
 
 47 P. 76. 
 
 48 Noble v. State Bank, 219 U. S. 104; Tanner v. 
 Little, 240 U. S. 3609; Hall v. Geiger Jones Co., 242 
 U. S. 539; Green v. Frazier, 253 U. S. 233; Frankfurter, 
 supra. 
 
 49 Burgess, “Reconciliation of Government and 
 Liberty.” 
 
 50 Adams v. Tanner, 244 U. S. 590. 
 
 80 
 
_ 
 
 HISTORY, TRADITION AND SOCIOLOGY 
 
 led into error in passing upon the validity of a 
 statute, not from misunderstanding of the law, 
 but from misunderstanding of the facts. This 
 happened in New York. A statute forbidding 
 
 might work for women was declared arbitrary and 
 
 - void in 1907.”* In rgr5, with fuller knowledge of 
 
 the investigations of social workers, a like statute 
 was held to be reasonable and valid.°* Courts 
 know today that statutes are to be viewed, not 
 in isolation or im vacuo, as pronouncements of 
 abstract principles for the guidance of an ideal 
 community, but in the setting and the frame- 
 work of present-day conditions, as revealed by 
 
 the labors of economists and students of the 
 
 Sito ae 
 
 social sciences in our own country and abroad.** / 
 
 The same fluid and dynamic conception which 
 underlies the modern notion of liberty, as secured 
 
 to the individual by the constitutional immunity, 
 
 51 People v. Williams, 189 N. Y. 131. 
 52 People v. Schweinler Press, 214 N. Y. 395. 
 53 Muller v. Oregon, 208 U. S. 412; Pound, “Courts 
 
 _and Legislation,” 9 Modern Legal Philosophy Series, p. 
 
 225; Pound, “Scope and Progress of Sociological Juris- 
 prudence,” 25 Harvard L. R. 513; cf. Brandeis, J., in 
 Adams v. Tanner, 244 U. S. 590, 600. 
 
 81 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 must also underlie the cognate notion of equality. 
 No state shall deny to any person within its 
 jurisdiction “the equal protection of the laws.”>* 
 Restrictions, viewed narrowly, may seem to 
 foster inequality. The same restrictions, when 
 viewed broadly, may be seen “to be necessary 
 in the long run in order to establish the equality 
 of position between the parties in which liberty 
 of contract begins.”°> Charmont in “La Renais- 
 sance du droit naturel,”°* gives neat expression 
 to the same thought: “On tend a considerer qu’il 
 n’y a pas de contrat respectable si les parties 
 n’ont pas été placées dans les conditions non 
 seulement de liberté, mais d’égalité. Si lun des 
 contractants est sans abri, sans ressources, con- 
 damné a subir les exigences de I’autre, la liberté 
 de fait est supprimée.””*” 
 
 From all this, it results that the content of 
 
 54U. S. Const., 14th Amendment. 
 
 55 Holmes, J., dissenting in Coppage v. Kansas, 236 
 VUsSuree?: 
 
 56 Montpellier, Coulet et fils., éditeurs, 1910. 
 
 57 “There is now a tendency to consider no contract 
 worthy of respect unless the parties to it are in rela- 
 tions, not only of liberty, but of equality. If one of the 
 
 82 eee 
 
4 
 
 HISTORY, TRADITION AND SOCIOLOGY 
 
 constitutional immunities is not constant, but 
 varies from age to age. “The needs of successive 
 generations may make restrictions imperative 
 today, which were vain and capricious to the 
 vision of times past.’”°* “We must never forget,” 
 in Marshall’s mighty phrase, “that it is a consti- 
 tution we are expounding.”®** Statutes are de4 
 Signed _to_meet.. the. fugitive exigencies of the 
 hour. Amendment is easy as the exigencies 
 change. In such cases, the meaning, once con- 
 strued, tends legitimately to stereotype itself in 
 the form first cast. A constitution states or ought 
 to state not rules for the passing hour, but 
 princ iples for an expanding future. In so far as 
 it deviates from that standard, and descends into 
 details and particulars, it loses its flexibility, the 
 
 scope of interpretation contracts, the meaning 
 
 parties be without defense or resources, compelled to 
 comply with the demands of the other, the result is 
 a supression of true freedom.”—Charmont, supra, p.172; 
 transl. in 7 Modern Legal Philosophy Series, p. 110, 
 sec. 83. 
 
 58 Klein v. Maravelas, 219 N. Y. 383, 386. 
 
 59 Cf. Frankfurter, supra; McCulloch v. Maryland, 
 4 Wheat. 407. 
 
 83 
 
% 
 
 \\ our present conditions would be.’ ”’*° So Kohler: 
 
 HISTORY, TRADITION AND SOCIOLOGY 
 hardens. While it is true to its function, it main- 
 tains its power of adaptation, its suppleness, its 
 play. I think it is interesting to note that even 
 in the interpretation of ordinary statutes, there 
 are jurists, at any rate abroad, who maintain 
 that the meaning of today is not always the 
 meaning of tomorrow. “The President of the 
 highest French Court, M. Ballot-Beaupré, ex- 
 plained, a few years ago, that the provisions of 
 the Napoleonic legislation had been adapted to 
 modern conditions by a judicial interpretation 
 in ‘le sens évolutif.’ ‘We do not inquire,’ he said, 
 ‘what the legislator willed a century ago, but 
 what he would have willed if he had known what 
 
 e@‘It follows from all this that the interpretation 
 of a statute must by no means of necessity re- 
 main the same forever. To speak of an exclu- 
 sively correct interpretation, one which would be 
 
 the true meaning of the statute from the begin- 
 
 60 Munroe Smith, “Jurisprudence,” pp. 29; 30; cf. 
 Vander Eycken, supra, pp. 383, 384; also Briitt, supra, 
 p. 62. 
 
 84 
 
 ‘i 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 ning to the end of its day, is altogether erro- 
 neous.** I think the instances must be rare, if any 
 can be found at all, in which this method of 
 interpretation has been applied in English or 
 American law to ordinary legislation. I have no 
 doubt that it has been applied in the past and 
 with increasing frequency will be applied in the 
 future, to fix the scope and meaning of the 
 broad precepts and immunities in state and na- 
 tional constitutions. I see no reason why it may 
 not be applied to statutes framed upon lines 
 similarly general, if any such there are. We are 
 to read them, whether the result be contraction 
 or expansion, in “le sens évolutif.”®? 
 
 Apposite illustrations may be found in recent 
 statutes and decisions. It was long ago held by 
 the Supreme Court that the legislature had the 
 
 power to control and regulate a business affected 
 
 61 Kohler, “Interpretation of Law,” transl. in 9 
 Modern Legal Philosophy Series, 192; cf. the Report 
 of Prof. Huber on the German Code, quoted by Gény, 
 “Technic of Codes,” 9 Modern Legal Philosophy Series, 
 p. 548; also Gény, “Méthode et Sources en droit privé 
 positif,” vol. I, p. 273. 
 
 62 Munroe Smith, supra. 
 
 85 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 _ with “a public use.”° It is held by the Supreme 
 Court today that there is a like power where the 
 business is affected with “a public interest.’ 
 The business of fire insurance has been brought 
 within that category.®** A recent decision of an 
 inferior court has put within the same category 
 the business of the sale of coal where the emer- 
 gency of war or of the dislocation that results 
 from war brings hardship and oppression in the 
 train of unfettered competition.°® The advocates 
 of the recent housing statutes in New York® pro- 
 fess to find in like principles the justification for 
 new restraints upon ancient rights of property. I 
 do not suggest any opinion upon the question 
 whether those acts in any of their aspects may 
 be held to go too far. I do no more than indicate 
 the nature of the problem, and the method and 
 spirit of approach.°* 
 
 63 Munn v. Illinois, 94 U. S. 113. 
 
 64 German Alliance Ins. Co. v. Kansas, 233 U. S. 380. 
 
 65 German Alliance Ins. Co. v. Kansas, supra. 
 
 66 American Coal Mining Co. v. Coal & Food Com- 
 mission, U. S. District Court, Indiana, Sept. 6, 1920. 
 
 67 L. 1920, chaps. 942 to 953. 
 
 68 Since these lectures were written, the statutes have 
 been sustained: People ex rel. Durham Realty Co. v. 
 
 86 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 Property, like liberty, though immune underf ‘ 
 the Constitution from destruction, is not ue 
 from regulation essential for the common good./ 
 What that regulation shall be, every generation 
 must work out for itself.°° The generation 
 _ which gave us Munn v. Illinois, 94 U. S. 113. 
 (1876), and like cases, asserted the right of regu- 
 lation whenever business was “affected with a 
 public use.” The phrase in its application meant 
 littlemore thanif itsaid, whenever the social need 
 shall be imminent and pressing, Such a formula- 
 tion of the principle may have been adequate 
 for the exigencies of the time. Today there is a 
 growing tendency in political and juristic thought 
 to probe the principle more deeply and formulate 
 it more broadly. Men are saying today that 
 property, like every other social institution, has 
 a social function to fulfill. Legislation which de- 
 stroys the institution is one thing, Legislation 
 which holds it true to its function is quite an- 
 other. That is the dominant theme of a new and 
 
 La Fetra, 230 N. Y. 429; Marcus Brown Holding Co. 
 v. Feldman, 256 U. S. 170. 
 69 Green v. Frazier, 253 U. S. 233. 
 
 87 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 forceful school of publicists and jurists on the 
 continent of Europe, in England, and even here. 
 Among the French, one may find the thought 
 developed with great power and suggestiveness 
 by Duguit in his “Transformations générales du 
 droit privé depuis le Code Napoléon.””° It is 
 yet too early to say how far this new conception 
 of function and its obligations will gain a lodg- 
 ment in our law. Perhaps we shall find in the 
 end that it is little more than Munn v. Illinois 
 in the garb of a new philosophy. I do not attempt 
 to predict the extent to which we shall adopt it, 
 or even to assert that we shall adopt it at all. 
 Enough for my purpose at present that new tim 
 and new manners may call for new standards an 
 new rules. 
 
 The courts, then, are free in marking th 
 limits of the individual’s immunities to shap 
 their judgments in accordance with reason and 
 justice. That does not mean that in judging the 
 validity of statutes they are free to substitute 
 
 7 Transl., Continental Legal Hist. Series, vol. XI, 
 Pp. 74, sec. 6, et seqg.; for a more extreme view, see R. H. 
 Tawney, “The Acquisitive Society.” 
 
 88 
 
HISTORY, TRADITION AND SOCIOLOGY 
 their own ideas of reason and justice for those 
 of the men and women whom they serve. Their 
 standard must be an objective one. In such 
 
 matters, the thing that counts is not what I _be- 
 
 lieve to be right. It is what I may reasonably,. 
 
 _ believe that some other man of normal intellect 
 and conscience might reasonably look upon as 
 right. ““While the courts must exercise a judg- 
 ment of their own, it by no means is true that 
 every law is void which may seem to the judges 
 who pass upon it excessive, unsuited to its os- 
 tensible end, or based upon conceptions of moral- 
 ity with which they disagree. Considerable lati- 
 tude must be allowed for difference of view as 
 well as for possible peculiar conditions which this 
 court can know but imperfectly, if at all. Other- 
 wise a constitution, instead of embodying only 
 relatively fundamental rules of right, as generally 
 understood by all English-speaking communities, 
 would become the partisan of a particular set of 
 ethical or economical opinions, which by no 
 means are held semper ubique et ab omnibus.”’™ 
 71 Otis v. Parker, 187 U. S. 608. 
 89 
 
 4 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 Here as so often in the law, “the standard of 
 
 x 
 
 conduct is external, and takes no account of the 
 
 personal equation of the man concerned.””? “The 
 interpreter,” says Brutt,’* “must above all things 
 put aside his estimate of political and legislative 
 values, and must endeavor to ascertain in a 
 purely objective spirit what ordering of the social 
 life of the community comports best with the 
 aim of the law in question in the circumstances 
 before him.” Some fields of the law there are, in- 
 
 deed, where there is freer scope for subjective 
 
 vision. Of these we shall say more hereafter. The 
 
 personal element, whatever its scope in other 
 spheres, should have little, if any, sway in de- 
 termining the limits of legislative power. One de- 
 partment of the government may not force upon 
 another its own standards of propriety. “It must 
 be remembered that legislatures are ultimate 
 guardians of the liberties and welfare of. the 
 people in quite as great a degree as courts.” 
 
 72 The Germanic, 196 U. S. 580, 506. 
 
 73 “Die Kunst der Rechtsanwendung,” p. 57. 
 
 74 Missouri, K. & T. Co. v. May, 194 U. S. 267, 270; 
 People v. Crane, 214 N. Y. 154, 173. 
 
 go 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 Some critics of our public law insist that the 
 power of the courts to fix the limits of permissible 
 encroachment by statute upon the liberty of the 
 individual is one that ought to be withdrawn.’® 
 It means, they say, either too much or too little. 
 If it is freely exercised, if it is made an excuse 
 for imposing the individual beliefs and philoso- 
 phies of the judges upon other branches of the 
 government, if it stereotypes legislation within 
 the forms and limits that were expedient in the 
 nineteenth or perhaps the eighteenth century, it 
 shackles progress, and breeds distrust and suspi- 
 cion of the courts. If, on the other hand, it is in- 
 terpreted in the broad and variable sense which I 
 believe to be the true one, if statutes are to be 
 sustained unless they are so plainly arbitrary and 
 oppressive that right-minded men and women 
 could not reasonably regard them otherwise, the 
 right of supervision, it is said, is not worth the | 
 danger of abuse. “There no doubt comes a time 
 
 when a statute is so obviously oppressive and ab- 
 
 75 Cf. Collins, “The 14th Amendment and the States,” 
 pp. 158, 166. 
 
 gI 
 
HISTORY, TRADITION AND SOCIOLOGY 
 surd that it can have no justification in any sane 
 polity.”’° Such times may indeed come, yet only 
 seldom. The occasions must be few when legisla- 
 tures will enact a statute that will merit con- 
 demnation upon the application of a test so 
 liberal; and if carelessness or haste or momentary 
 passion may at rare intervals bring such statutes 
 into being with hardship to individuals or classes, 
 we may trust to succeeding legislatures for the 
 undoing of the wrong. That is the argument of 
 the critics of the existing system. My own belief 
 is that it lays too little stress on the value of the 
 “imponderables.” The utility of an external 
 power restraining the legislative judgment is not 
 to be measured by counting the occasions of its 
 exercise. The great ideals of liberty and equality 
 are preserved against the assaults of opportunism, 
 the expediency of the passing hour, the erosion of 
 small encroachments, the scorn and derision of 
 those who have no patience with general prin- 
 
 ciples, by enshrining them in censtitutions, and 
 
 76 Learned Hand, “Due Process of Law and the 
 Eight Hour Day,” 21 Harvard L. R. 495, 508. 
 
 Q2 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 consecrating to the task of their protection a 
 body of defenders. By conscious or subconscious 
 influence, the presence of this restraining power, 
 aloof in the background, but none the less always 
 in reserve, tends to stabilize and rationalize the 
 legislative judgment, to infuse it with the glow 
 of principle, to hold the standard aloft and 
 visible for those who must run the race and keep 
 the faith."” I do not mean to deny that there 
 have been times when the possibility of judi- 
 cial review has worked the other way. Legis- 
 latures have sometimes disregarded their own 
 responsibility, and passed it on to the courts. 
 Such dangers must be balanced against those of 
 independence from all restraint, independence on 
 the part of public officers elected for brief terms, 
 without the guiding force of a continuous tradi- 
 tion. On the whole, I believe the latter dangers 
 to be the more formidable of the two. Great 
 maxims, if they may be violated with impunity, 
 are honored often with lip-service, which passes 
 
 77 Cf, Laski, “Authority in the Modern State,” pp. 
 62, 63. 
 
 93 
 
HISTORY, TRADITION AND SOCIOLOGY 
 easily into irreverence. The restraining power of 
 the judiciary does not manifest its chief worth 
 in the few cases in which the legislature has 
 gone beyond the lines that mark the limits of dis- 
 cretion. Rather shall we find its chief. worth in 
 making vocal and audible the ideals that might 
 otherwise be silenced, in giving them continuity 
 of life and of expression, in guiding and directing 
 choice within the limits where choice ranges. 
 This function should preserve to the courts the 
 power that now belongs to them, if only the 
 power is exercised with insight into social values, 
 and with suppleness of adaptation to changing 
 social needs. 
 
 I pass to another field where the dominance of 
 the method of sociology may be reckoned as as- | 
 sured. There are some rules of private law which 
 have been shaped in their creation by public 
 policy, and this, not merely silently or in conjunc- 
 tion with other forces, but avowedly, and almost, 
 if not quite, exclusively. These, public policy, as 
 determined by new conditions, is competent to 
 change. I take as an illustration modern decisions 
 
 94 
 
HISTORY, TRADITION AND SOCIOLOGY 
 which have liberalized the common law rule con- 
 demning contracts in restraint of trade. The 
 courts have here allowed themselves a freedom 
 of action which in many branches of the law 
 they might be reluctant to avow. Lord Watson 
 put the matter bluntly in Nordenfeldt v. Maxim, 
 Nordenfeldt Guns & Ammunition Co. L. R. 
 1894 App. Cas. 535, 553: “‘A series of decisions 
 based upon grounds of public policy, however 
 eminent the judges by whom they were delivered, 
 cannot possess the same binding authority as 
 decisions which deal with and formulate princi- 
 ples which are purely legal. The course of policy 
 pursued by any country in relation to, and for 
 promoting the interests of, its commerce must, 
 as time advances and as its commerce thrives, 
 undergo change and development from various 
 causes which are altogether independent of the 
 action of its courts. In England, at least, it is 
 beyond the jurisdiction of her tribunals to mould 
 and stereotype national policy. Their function, 
 when a case like the present is brought before 
 them, is, in my opinion, not necessarily to ac- 
 
 95 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 cept what was held to have been the rule of. 
 policy a hundred or a hundred and fifty years 
 ago, but to ascertain, with as near an approach 
 to accuracy as circumstances permit, what is the 
 tule of policy for the then present time. When 
 _ that rule has been ascertained, it becomes their 
 duty to refuse to give effect to a private contract 
 which violates the rule, and would, if judicially 
 enforced, prove injurious to the community.” A 
 like thought finds expressien in the epiniens of 
 our own courts. “Arbitrary rules which were 
 originally well founded have thus been made to 
 yield to changed conditions, and underlying prin- 
 ciples are applied to existing methods of doing 
 business. The tendencies in most of the American 
 courts are in the same direction.”’* I think we 
 may trace a like development in the attitude of 
 the courts toward the activities of labor unions. 
 The suspicion and even hostility of an earlier 
 generation found reflection in judicial decisions 
 
 which a changing conception of social values 
 
 78 Knowlton, J., in Anchor Electric Co. v. Hawkes, 
 171 Mass. ror, 104. 
 
 96 
 
 ae 
 
 os 
 
HISTORY, TRADITION AND SOCIOLOGY 
 
 has made it necessary to recast.’ Some remnants 
 of the older point of view survive, but they are 
 remnants only. The field is one where the law 
 is yet in the making or better perhaps in the re- 
 making. We cannot doubt that its ‘new form will | 
 _bear an impress of social needs and values which 
 are emerging even now to recognition and to 
 
 power. 
 
 79 Cf. Laski, “Authority in the Modern State,” p. 39. 
 
 97 
 
Lecture III. The Method of 
 Sociology. The Judge as 
 
 a Legislator 
 
 HAVE chosen these branches of the law 
 I merely as conspicuous illustrations of the 
 application by the courts of the method of 
 sociology. But the truth is that there is no branch 
 where the method is not fruitful. Even when it _ 
 does not seem to dominate, it is always in reserve. 
 It is the arbiter between other methods, de- 
 termining in the last analysis the choice of each, 
 weighing their competing claims, setting bounds 
 to their pretensions, balancing and moderating 
 and harmonizing them all. Few rules in our time . 
 are so well established that they may not be 
 called upon any day to justify their existence 
 as means adapted to an end. If they do not func- 
 tion, they are diseased. If they are diseased, they 
 must not propagate their kind. Sometimes they 
 are cut out and extirpated altogether. Sometimes 
 
 98 
 
THE METHOD OF SOCIOLOGY 
 they are left with the shadow of continued life, 
 
 but sterilized, truncated, impotent for harm. 
 We get a striking illustration of the force of 
 logical consistency, then of its gradual breaking 
 down before the demands of practical conven- 
 -ience in isolated or exceptional instances, and 
 finally of the generative force of the exceptions 
 as a new stock, in the cases that deal with the 
 right of a beneficiary to recover on a contract. 
 England has been logically consistent and has 
 refused the right of action altogether. New York 
 and most states yielded to the demands of con- 
 venience and enforced the right of action, but 
 at first only exceptionally and subject to many 
 restrictions. Gradually the exceptions broadened 
 till today they have left little of the rule.* It 
 survives chiefly in those cases where intention 
 would be frustrated or convenience impaired by 
 the extension of the right of action to others than 
 the contracting parties. Rules derived by a 
 
 process of logical deduction from pre-established 
 
 1Seaver v. Ransom, 224 N. Y. 233. 
 2Fosmire v. National Surety Co., 229 N. Y. 44. 
 
 99 
 
THE METHOD OF SOCIOLOGY 
 
 conceptions of contract and obligation have 
 broken down before the slow and steady and 
 erosive action of utility and justice.® 
 
 We see the same process at work in other 
 fields. We no longer interpret contracts with 
 meticulous adherence to the letter when in con- 
 flict with the spirit. We read covenants into 
 them by implication when we find them “instinct 
 with an obligation” imperfectly expressed. “The 
 law has outgrown its primitive stage of formalism 
 when the precise word was the sovereign talisman, 
 and every slip was fatal.”* Perhaps it is in the 
 ‘ field of procedure that we have witnessed the 
 chief changes; though greater ones must yet be 
 wrought. Indictments and civil pleadings are 
 viewed with indulgent eyes. Rulings upon ques- 
 tions of evidence are held with increasing fre- 
 quency to come within the discretion of the judge 
 presiding at the trial. Errors are no longer ground 
 for the upsetting of judgments with the ensuing 
 horror of new trials, unless the appellate court 
 
 8 Cf. Duguit, op. cit., Continental Legal Hist. Series, 
 vol. XI, p. 120, sec. 36. 
 4Wood v. Duff Gordon, 222 N. Y. 88. 
 
 I0o0 
 
THE METHOD OF SOCIOLOGY 
 is satisfied that they have affected the result.| 
 
 Legislation has sometimes been necessary to free ; 
 us from the old fetters. Sometimes the con- 
 servatism of judges has threatened for an interval 
 
 to rob the legislation of its efficacy.’ This danger 
 was disclosed in the attitude of the courts toward 
 
 the reforms embodied in codes of practice, in the 
 days when they were first enacted.* Precedents; 
 established in those times exert an unhappy in- 
 fluence even now. None the less, the tendency; ef 
 _ today is in the direction of a growing sar al 
 The new spirit has made its way gradually; and 
 its progress, unnoticed step by step, is visible in 
 retrospect as we look back upon the distance 
 traversed. The old forms remain, but they are 
 filled with a new content. We are getting away» 
 from what Ehrlich calls “die spielerische und 
 die mathematische Entscheidung,’” the concep- 
 
 tion of a lawsuit either as a mathematical prob- 
 
 _5 Kelso v. Ellis, 224 N. Y. 528, 536, 537; California 
 Packing Co. v. Kelly S. & D. Co., 228 N. Y. 40. 
 6 Pound, “Common Law and Legislation,” 21 Har- 
 _vard L. R. 383, 387. 
 _ tEhriich, “Die juristische Logik,” p. 295; cf. pp. 294, 
 296. 
 
 Iol 
 
wr 
 
 THE METHOD OF SOCIOLOGY 
 
 lem or as a sportsman’s game. Our own Wigmore 
 
 has done much to make that conception out of 
 
 date.* We are thinking of the end which the law 
 
 serves, and fitting its rules to the task of service. 
 
 This conception of the end of the law as de- 
 
 termining the direction of its growth, which was 
 Jhering’s great contribution to the theory of 
 jurisprudence,’ finds its organon, its instrument, 
 
 in the method of sociology. Not the origin, but 
 
 WW the goal, is the main thing. There can be no 
 
 LAVA 
 
 wisdom in the choice of a path unless we know 
 r KY ow where it will lead. The teleological conception of 
 
 his function must be ever in the judge’s mind. 
 This means, of course, that the juristic philoso- 
 phy of the common law is at bottom the philoso- 
 phy of pragmatism.*® Its truth is relative, not 
 absolute. The rule that functions well produces 
 
 8 See his Treatise on Evidence, passim. 
 
 ® Jhering, “Zweckim Recht,” 5 Modern Legal Philoso- 
 phy Series; also Gény, op. cit., vol. I, p. 8; Pound, 
 “Scope and Purpose of Sociological Jurisprudence,” 25 
 Harvard L. R. 140, 141, 145; Pound, “Mechanical 
 Jurisprudence,” 8 Columbia L. R. 603, 610. | 
 
 10 Pound, “Mechanical Jurisprudence,” 8 Columbia. 
 L. R. 603, 609.° 
 
 I02 
 
THE JUDGE AS A LEGISLATOR 
 
 a title deed to recognition. Only in determining 
 how it functions we must not view it too nar- 
 rowly. We must not sacrifice the general to the 
 particular. We must not throw to the winds the 
 advantages of consistency and uniformity to do 
 justice in the instance.** We must keep within 
 those interstitial limits which precedent and 
 custom and the long and silent and almost inde- 
 finable practice of other judges through the 
 centuries of the common law have set to judge- 
 made innovations. But within the limits thus 
 set, within the range over which choice moves, 
 the final principle of selection for judges, as for 
 legislators, is one of fitness to an end. “Le but, 
 est la vie interne, l’ame cachée, mais génératrice, 
 de tous les droits.”’* We do not pick our rules 
 of law full-blossomed from the trees. Every judge 
 consulting his own experience must be conscious 
 of times when a free exercise of will, directed of 
 
 11 Cf, Briitt, supra, pp. 161, 163. 
 
 12 Saleilles, “De la Personnalité Juridique,” p. 4097. 
 
 “Avec Jhering nous resterons des réalistes, mais 
 
 avec lui aussi nous serons des idéalistes, attachés 4 Didée 
 de but et de finalité sociale.”—Saleilles, p. 516. 
 
 103 
 
THE JUDGE AS A LEGISLATOR 
 
 set purpose to the furtherance of the common 
 good, determined the form and tendency of a rule 
 which at that moment took its origin in one 
 creative act. Savigny’s conception of law as 
 something realized without struggle or aim or 
 purpose, a process of silent growth, the fruition 
 in life and manners of a people’s history and 
 genius, gives a picture incomplete and partial. 
 It is true if we understand it to mean that the , 
 
 Vv 
 
 { mores of his day. It is one-sided and therefore : 
 
 judge in shaping the rules of law must heed the 
 
 false in so far as it implies that the mores of the 
 day automatically shape rules which, full grown 
 and ready made, are handed to the judge.** 
 Legal norms are confused with legal principles— 
 Entscheidungsnormen with Rechtssdize.** Law is, 
 indeed, an historical growth, for it is an expres- 
 sion of customary morality which develops 
 _ silently and unconsciously from one age to an- 
 
 13Cf. Ehrlich, “Grundlegung der Soziologie des 
 Rechts,” pp. 366, 368; Pound, “Courts and Legislatign,” 
 9 Modern Legal Philosophy Series, p. 212; Gray, “Nature 
 and Sources of Law,” secs. 628, 650; Vinogradoff, “Out- 
 lines of Historical Jurisprudence,” p. 135. 
 
 14 Ehrlich, supra. 
 
 104 
 
THE JUDGE AS A LEGISLATOR 
 other. That is the great truth in Savigny’s theory 
 
 of its origin. But law is also a conscious or pur- 
 posed growth, for the expression of customary 
 morality will be false unless the mind of the 
 judge is directed to the attainment of the moral 
 end and its embodiment in legal forms.*®* Noth- 
 ing less than conscious effort will be adequate if 
 the end in view is to prevail. The standards or 
 patterns of utility and morals will be found by 
 the judge in the life of the community. They 
 will be found in the same way by the legislator. 
 That does not mean, however, that the work of 
 the one any more than that of the other is a 
 replica of nature’s forms. 
 
 There has been much debate among foreign 
 jurists whether the norms of right and useful 
 conduct, the patterns of social welfare, are to be 
 found by the judge in conformity with an objec- 
 tive or a subjective standard. Opposing schools 
 of thought have battled for each view.*® At times, 
 
 15 Cf. Gény, op. cit., vol. I, p. 263, sec. 92. 
 
 16 For a clear and interesting summary, see Britt, 
 supra, p. 101, et seqg.; cf. Gény, op. cit., vol. I, p. 2215 
 and contrast Flavius, op. cit., p. 87. 
 
 105 
 
THE JUDGE AS A LEGISLATOR 
 
 the controversy has seemed to turn upon the 
 use of words and little more. So far as the distinc- 
 tion has practical significance, the traditions of 
 our jurisprudence commit us to the objective 
 standard. I do not mean, of course, that this ideal 
 of objective vision is ever perfectly attained. We 
 cannot transcend the limitations of the ego and 
 see anything as it really is. None the less, the 
 ideal is one to be striven for within the limits of 
 our capacity. This truth, when clearly perceived, 
 tends to unify the judge’s function. His duty to 
 declare the law in accordance with reasonand jus- 
 tice is seen to be a phase of his duty to declare it 
 in accordance with custom. It is the customary 
 morality of right-minded men and women which 
 he is to enforce by his decree. A jurisprudence 
 that is not constantly brought into relation to 
 objective or external standards, incurs the risk 
 of degenerating into what the Germans call “Die 
 Gefiihlsjurisprudenz,” a jurisprudence of mere 
 sentiment or feeling.*” A judicial judgment, says 
 Stammler, “should be a judgment of objective 
 17 Britt, supra, pp. 101-111. 
 
 106 
 
THE JUDGE AS A, LEGISLATOR 
 
 right, and no subjective and free opinion; a 
 verdict and not a mere personal fiat. Evil stands 
 the case when it is to be said of a judicial decree 
 as the saying goes in the play of the ‘Two Gen- 
 tlemen of Verona’ (Act I, sc. ii): 
 “‘‘T have no other but a woman’s reason; 
 I think him so, because I think him so.’ ””?® 
 Scholars of distinction have argued for a more 
 subjective standard. “We all agree,” says Pro- 
 fessor Gray,’® “that many cases should be de- 
 cided by the courts on notions of right and 
 wrong, and, of course, everyone will agree that 
 a judge is likely to share the notions of right and 
 wrong prevalent in the community in which he 
 lives; but suppose in a case where there is 
 nothing to guide him but notions of right and 
 wrong, that his notions of right and wrong differ 
 from those of the community—which ought he 
 to follow—his own notions, or the notions of the 
 community? Mr. Carter’s theory [“‘Origin and 
 Sources of Law,” J. C. Carter] requires him to 
 
 18 Stammler, “Richtiges Recht,” s. 162, quoted by 
 Briitt, supra, p. 104. 
 19 “Nature and Sources of Law,” sec. 610. 
 
 107 
 
yo. 
 
 
 
 
 
 THE JUDGE AS A LEGISLATOR 
 say that the judge must follow the notions of the 
 
 community. I believe that he should follow his 
 own notions.” The hypothesis that Professor 
 Gray offers us, is not likely to be realized in 
 practice. Rare indeed must be the case when, 
 with conflicting notions of right conduct, there 
 will be nothing else to sway the balance. If, how-. 
 ever, the case supposed were here, a judge, I 
 think, would err if he were to impose upon the 
 community as a rule of life his own idiosyncrasies 
 of conduct or belief. Let us, suppose, for illustra- 
 tion, a judge who looked upon theatre-going as 
 a sin. Would he be doing right if, in a field where 
 the rule of law was still unsettled, he permitted 
 this conviction, though known to be in conflict 
 with the dominant standard of right conduct, to 
 govern his decision? My own notion is that he 
 
 would be under-a~duty to conform to the & 
 
 
 
 “cepted standards of the community, the mores 
 of the times. This does not ok ae tee 
 
 0 raise the level of prevail- 
 ing conduct. In one field or another of activity, 
 practices in opposition to the sentiments and 
 
 108 
 
THE JUDGE AS A LEGISLATOR 
 standards of the age may grow up and threaten 
 to intrench themselves if not dislodged. Despite 
 their temporary hold, they do not stand com- 
 parison with accepted norms of morals. Indolence 
 or passivity has tolerated what the considerate 
 judgment of the community condemns. In such 
 
 cases, one of the highest functions of the judge 
 
 is to establish the true relation between conduct | 
 
 and profession. There are even times, to speak — 
 
 somewhat paradoxically, when nothing less than 
 a subjective measure will satisfy objective stand- 
 ards. Some relations in life impose a duty to 
 act in accordance with the customary morality 
 and nothing more. In those the customary 
 morality must be the standard for the judge. 
 Caveat emptor is a maxim that will often have 
 to be followed when the morality which it ex- 
 presses is not that of sensitive souls. Other rela- 
 tions in life, as, e.g., those of trustee and 
 beneficiary, or principal and surety, impose a 
 duty to act in accordance with the highest stand- 
 ards which a man of the most delicate conscience 
 and the nicest sense of honor might impose upon 
 
 109 
 
' 
 ‘I 
 
 THE JUDGE AS A LEGISLATOR 
 
 himself. In such cases, to enforce adherence to 
 those standards becomes the duty of the judge. 
 Whether novel situations are to be brought 
 within one class of relations or within the other 
 must be determined, as they arise, by considera- 
 tions of analogy, of convenience, of fitness, and 
 of justice. 
 
 The truth, indeed, is, as I have said, that the 
 distinction between the subjective or individual 
 and the objective or general conscience, in the 
 field where the judge is not limited by established _ 
 
 rules, is shadowy and evanescent, and tends to 
 
 become one of words and little more. For the 
 casuist and the philosopher, it has its speculative 
 intediet: In the practical administration of. jus- 
 tice, it will seldom be decisive for the judge. 
 This is admitted by Briitt, one of the staunchest 
 upholders of the theory of objective right.?° The 
 perception of objective right takes the color of 
 the subjective mind. The conclusions of the 
 subjective mind take the color of customary | 
 practices and objectified beliefs. There is con- 
 20 Supra, p. 139. 
 
 IIo 
 
THE JUDGE AS A LEGISLATOR 
 
 stant and subtle interaction between what is 
 without and what is within. We may hold, on the 
 one side, with Tarde and his school, that all 
 social innovations come “from individual inven- 
 tions spread by imitation,’”** or on the other side, 
 with Durkheim and his school, that all such 
 innovations come “through the action of the 
 social mind.’? In either view, whether the im- 
 pulse spreads from the individual or from society, 
 from within or from without, neither the com- 
 ponents nor the mass can work in independence 
 of each other. The personal and the general mind 
 and will are inseparably united. The difference, 
 as one theory of judicial duty or the other pre- 
 vails, involves at most a little change of em- 
 phasis, of the method of approach, of the point 
 of view, the angle, from which problems are en- 
 visaged. Only dimly and by force of an influence 
 subconscious, or nearly so, will the difference be 
 
 reflected in the decisions of the courts. 
 
 21 Barnes, “Durkheim’s Political Theory,’ 35 Pol. 
 Science Quarterly, p. 230. 
 22 Tbid.; cf. Barker, “Political Thought from Spencer 
 
 to Today,” pp. 151, 153, 175. 
 III 
 
rr, 
 
 / 
 
 ‘wae 
 
 THE JUDGE AS A LEGISLATOR 
 
 My analysis of the judicial process comes then 
 
 ' to this, and little more: logic, and history, and 
 
 custom, and utility, and the accepted_standards 
 of right conduct, are the forces which singly or 
 
 in combination. shape the Progress of the law. 
 
 “Which of these forces shall dominate in any 
 
 case, must depend largely upon the comparative 
 
 importance or value of the social interests that 
 
 _ will be thereby promoted or impairéd:28 One oft 
 
 ‘the most fundamental social interests is that 
 
 " law shall be uniform and impartial. There must 
 
 Le nothing in its action that savors of prejudice ; 
 or favor or even arbitrary whim or fitfulness. | 
 
 Therefore in the main there shall be adherence | 
 
 to precedent. There shall be symmetrical develop- 
 ment, consistently with history or custom when 
 history or custom has been the motive force, or 
 the chief one, in giving shape to existing rules, 
 and with logic or philosophy when the motive 
 power has been theirs. But symmetrical develop- 
 ment may be bought at too high a price. Uni- 
 
 23 Vander Eycken, “Méthode Positive de l’Interpréta- 
 tion juridique,” p. 59; Ehrlich, “Die juristische Logik,” 
 p. 187. 
 
 II2 
 
 | 
 
THE JUDGE AS A LEGISLATOR 
 
 formity ceases to be a good when it becomes 
 uniformity of oppression. The social interest 
 served by symmetry or certainty must then be 
 balanced against the social interest served by 
 equity and fairness or other elements of social 
 _ welfare. These may enjoin upon the judge the 
 duty of drawing the line at another angle, of 
 staking the path along new courses, of marking a 
 new point of departure from which others who 
 come after him will set out upon their journey. 
 If you ask how he is to know when one in- ;’ 
 terest outweighs another, I can only answer that j | 
 : he must get his knowledge just as the legislator ‘ 
 gets it, from experience and study and reflection; — 
 in brief, from life itself. Here, indeed, is the * 
 point of contact between the legislator’s work 
 and his. The choice of methods, the appraisement 
 of values, must in the end be guided by like 
 considerations for the one as for the other. Each 
 indeed is legislating within the limits of his 
 competence. No doubt the limits for the judge | 
 are narrower. He legislates only between gaps. | 
 He fills the open spaces in the law. How far he 
 
 113 
 
THE JUDGE AS A LEGISLATOR 
 may go without traveling beyond the walls of 
 the interstices cannot be staked out. for him 
 upon a chart. He must learn it for himself as he 
 gains the sense of fitness and proportion that 
 comes with years of habitude in the practice of 
 an art. Even within the gaps, restrictions not 
 easy to define, but felt, however impalpable they 
 may be, by every judge and lawyer, hedge and 
 circumscribe his action. They are established by 
 the traditions of the centuries, by the example 
 of other judges, his predecessors and his col- 
 leagues, by the collective judgment of the pro- 
 fession, and by the duty of adherence to the 
 pervading spirit of the law. “Il ne_peut inter- 
 venir,” says Charmont,”* “que pour suppléer les 
 sources formelles, mais il n’a pas, dans cette 
 mesure méme, toute latitude pour créer des 
 régles de droit. Il ne peut ni faire échec aux 
 principes généraux de notre organisation juri- 
 dique, explicitement on implicitement consacrés, 
 ni formuler une réglementation de detail pour 
 
 l’exercise de certains droits, en établissant des 
 
 24 “Ta Renaissance du droit naturel,” p. 181. 
 
 II4 
 
THE JUDGE AS A LEGISLATOR 
 
 délais, des formalités, des régles de publicité.’’® 
 None the less, within the confines of these open’ 3 
 spaces and those of precedent and tradition, 
 choice moves with a freedom which stamps its 
 action as creative. The law which is the resulting 
 product is not found, but made. The process, 
 
 being legislative, demands the legislator’s wisdom. 
 
 25 “Fie may intervene only to supplement the formal 
 authorities, and even in that field there are limits to his 
 discretion in establishing rules of law. He may neither 
 restrict the scope of the general principles of our juridi- 
 cal organization, explicitly or implicitly sanctioned, nor 
 may he lay down detailed regulations governing the 
 exercise of given rights, by. introducing delays, 
 formalities, or rules of publicity..—Charmont, supra, 
 transl. in 7 Modern Legal Philosophy Series, p. 120, sec. 
 o1. Cf. Jhering, “Law as a Means to an End” (5 Modern 
 Legal Philosophy Series: Introduction by W. M. Gel- 
 dart, p. xlvi): “The purposes of law are embodied in 
 legal conceptions which must develop in independ- 
 ence and cannot at every step be called upon to 
 conform to particular needs. Otherwise system and 
 certainty would be unattainable. But this autonomy of 
 law, if it were only because of excess or defects of 
 logic, will lead to a divergence between law and the 
 needs of life, which from time to time calls for correc- 
 tion. . . . How far if at all the needful changes can 
 or ought to be carried out by judicial decisions or the 
 development of legal theory, and how far the interven- 
 tion of the legislator will be called for, is a matter that 
 will vary from one legal territory to another according 
 to the accepted traditions as to the binding force of 
 
 II5 
 
THE JUDGE AS A LEGISLATOR 
 
 There is in truth nothing revolutionary or 
 even novel in this view of the judicial function.” 
 It is the way that courts have gone about their 
 business for centuries in the development of the 
 common law. The difference from age to age is 
 not so much in the recognition of the need that 
 law shall conform itself to an end. It is rather 
 in the nature of the end to which there has been 
 need to conform. There have been periods when 
 uniformity, even rigidity, the elimination of the 
 personal element, were felt to be the paramount 
 needs.?’ By a sort of paradox, the end was best 
 served by disregarding it and thinking only of 
 the means. Gradually the need of a more flexible 
 system asserted itself. Often the gap between 
 the old rule and the new was bridged by the 
 pious fraud of a fiction.” The thing which con- 
 cerns us here is that it was bridged whenever the 
 precedents, the character of the enacted law, and the 
 wider or narrower liberty of judicial interpretation.” 
 
 26 Cf. Berolzheimer, 9 Modern Legal Philosophy 
 Series, pp. 167, 168. 
 
 27 Flavius, supra, p. 49; 2 Pollock and Maitland, 
 
 “History of English Law,” p. 561. 
 28 Smith, “Surviving Fictions,” 27 Yale L. J., 147; 
 
 116 
 
THE JUDGE AS A LEGISLATOR 
 
 Be artarice of the end was dominant. Today the 
 use of fictions has declined; and the springs of 
 action are disclosed where once they were con- 
 cealed. Even now, they are not fully known, 
 however, even to those whom they control. Much 
 _of the process has been unconscious or nearly so. 
 The ends to which courts have addressed them- 
 
 | nn ICL sn oy aseainse si tc ps PEDERI RED Rae se 
 selves, the reasons and motives that have guided 
 
 
 
 I" 
 
 them, have often been vaguely felt, intuitively 
 
 or_almost intuitively a “apprehended, seldom. ex- 
 plicitly avowed. There has been little of de- 
 liberate introspection, of dissection, of analysis, 
 of philosophizing. The result has been an amal- 
 gam of which the ingredients were unknown or 
 forgotten. That is why there is something of a 
 shock in the discovery that legislative policy has 
 made the compound what it is. “We do not 
 
 317; Ehrlich, supra, pp. 227, 228; Saleilles, “De la 
 Pérsonnalité Juridique,” p. 382. 
 
 “Lorsque la loi sanctionne certains rapports juridiques, 
 a lexclusion de tels autres qui en différent, il arrive, pour 
 tels ou tels rapports de droit plus ou moins similaires 
 auxquels on sent le besoin d’étendre la protection légale, 
 que l’on est tenté de procéder, soit par analogie, soit par 
 fiction. La fiction est une analogie un peu amplifice, ou 
 plutét non dissimulée.”—Saleilles, supra. 
 
 117 
 
THE JUDGE AS A LEGISLATOR 
 
 realize,” says Holmes,” “how large a part of 
 our law is open to reconsideration aii. a_slight 
 change i in the habit of the public mind. No con- 
 crete proposition is “self-evident, no matter how 
 ready we may be to accept it, not even Mr. Her- 
 bert Spencer’s every man has a right to do what 
 he wills, provided he interferes not with a like 
 right on the part of his neighbors.” “Why,” he 
 continues, “is a false and injurious statement 
 privileged, if it is made honestly in giving in- 
 formation about a servant? It is because it has 
 been thought more important that information 
 should be given freely, than that a man should 
 be protected from what under other circum- 
 stances would be an actionable wrong.. Why is 
 a man at liberty to set up a business which he 
 knows will ruin his neighbor? It is because the 
 public good is supposed to be best subserved by 
 free competition. Obviously such judgments of 
 relative importance may vary in different times 
 and places. . . . I think that the judges them- 
 
 selves have failed adequately to recognize their 
 
 29“The Path of the Law,” 10 Harvard L. R. 466. 
 118 
 
THE JUDGE AS A LEGISLATOR 
 
 duty of weighing considerations of social advan- 
 tage. The duty is inevitable, and the result of 
 the often proclaimed judicial aversion to deal 
 with such considerations'is simply to leave the 
 very ground and foundation of judgments in- 
 articulate, and often unconscious, as I have 
 said.” 
 
 Not only in our common law system has this 
 conception made its way. Even in other systems 
 where the power of judicial initiative is more 
 closely limited by statute, a like development is 
 in the air. Everywhere there is growing emphasis 
 on the analogy between the function of the 
 judge and the function of the legislator. I may 
 instance Francois Gény who has developed the 
 analogy with boldness and suggestive power.*° 
 “A priori,” he says, “‘the process of research (la 
 recherche), which is imposed upon the judge in 
 finding the law seems to us very analogous to 
 that incumbent on the legislator himself. Except 
 for this circumstance, certainly not negligible, 
 
 and yet of secondary importance, that the process 
 30 Op. cit., vol. II, p. 77. 
 119 
 
THE JUDGE AS A LEGISLATOR 
 
 is set in motion by some concrete situation, and 
 in order to adapt the law to that situation, the 
 considerations which ought to guide it are, in 
 respect of the final end to be attained, exactly of 
 the same nature as those which ought to domi- 
 nate legislative action itself, since it is a question 
 in each case, of satisfying, as best may be, justice 
 and social utility by.an appropriate rule. Hence, 
 I will not hesitate in the silence or inadequacy 
 of formal sources, to indicate/as the general line 
 of direction for the judge the following: that he 
 ought to shape his judgment of the law in obe- 
 dience to the same aims which would be those of 
 a legislator who was proposing to himself to 
 regulate. the question. None the less, an impor- 
 tant distinction sepatates here judicial from 
 legislative activity. While the legislator is not 
 hampered by any limitations in the appreciation 
 of a general situation, which he regulates in a] 
 manner altogether abstract, the judge, who de- 
 cides in view of particular cases, and with refer- 
 ence to problems absolutely concrete, ought, in| — 
 adherence to the spirit of our modern organiza- \ 
 
 I20 
 
THE JUDGE AS A LEGISLATOR 
 
 tion, and in order to escape the dangers of 
 arbitrary action, to disengage himself, so far as 
 possible, of every influence that is personal or 
 that comes from the particular situation which 
 is presented to him, and base his judicial decision 
 on elements of an objective nature. And that is 
 why the activity which is proper to him has 
 seemed to me capable of being justly qualified: 
 free scientific research, libre recherche sct- 
 entifique: free, since it is here removed from the 
 action of positive authority; scientific, at the 
 same time, because it can find its solid founda- 
 tions only in the objective elements which science 
 alone is able to reveal to it.’’** 
 
 The rationale of the modern viewpoint has 
 been admirably expressed by Vander Eycken*? 
 in his “Méthode positive de 1l’Interprétation 
 juridique”:** “Formerly men looked upon law 
 as the product of the conscious will of the 
 
 legislator. Today they see in it a natural force. 
 
 81 Ehrlich has the same thought, “Die juristische 
 
 Logik,” p. 312. 
 82 Professor in the University of Brussels. 
 83 P, 401, Se€C. 230. 
 
 I2T 
 
THE JUDGE AS A LEGISLATOR 
 
 If, however, we can attribute to law the epithet 
 ‘natural,’ it is, as we have said, in a different 
 sense from that which formerly attached to thé~ 
 expression ‘natural law.’ That expression then 
 meant that nature had imprinted in us, as one 
 of the very elements of reason, certain principles 
 of which all the articles of the code were only 
 the application. The same expression ought to 
 mean today that law springs from the relations 
 of fact which exist between things. Like those 
 relations themselves, natural law is in perpetual 
 travail. It is no longer in texts or in systems de- 
 rived from reason that we must look for th 
 source of law; it is in social utility, in the neces- 
 sity that certain consequences shall be attached 
 to given hypotheses. The legislator has only a 
 fragmentary consciousness of this law; he trans- 
 lates it by the rules which he prescribes. When 
 the question is one of fixing the meaning of those 
 rules, where ought we to search? Manifestly at 
 their source; that is to say, in the exigencies of 
 social life. There resides the strongest proba- 
 bility of discovering the sense of the law. In the 
 
 I22 
 
 
 
THE JUDGE AS A LEGISLATOR 
 
 same way when the question is one of supplying 
 the gaps in the law, it is not of logical deduc- 
 tions, it is rather of social needs, that we are to 
 ask the solution.” 
 
 Many of the gaps have been filled in the de- 
 velopment of the common law by borrowing from 
 other systems. Whole titles in our jurisprudence 
 have been taken from the law of Rome. Some of 
 the greatest of our judges—Mansfield in Eng- 
 land, Kent and Story here—were never weary 
 of supporting their judgments by citations from 
 the Digest. We should be traveling too far afield 
 if we were to attempt an estimate of the extent 
 to which the law of Rome has modified the 
 common law either in England or with us.** 
 Authority it never had. The great historic move- 
 ment of the Reception did not touch the British 
 Isles.*° Analogies have been supplied. Lines of 
 thought have been suggested. Wise solutions 
 
 84 Qn this subject, see Sherman, “Roman Law in the 
 Modern World”; Scrutton, “Roman Law Influence,” 
 1 Select Essays in Anglo-Am. Legal Hist. 208. 
 
 85 y Pollock and Maitland’s “History of English Law,” 
 88, 114; Maitland’s “Introduction to Gierke,” supra, 
 p. xii. 
 
 123 
 
THE JUDGE AS A LEGISLATOR 
 
 have been offered for problems otherwise in- 
 soluble. None the less, the function of the for- 
 eign system has been to advise rather than to 
 command. It has not furnished a new method. It 
 has given the raw material to be utilized by 
 methods already considered—the methods of 
 philosophy and history and sociology—in the 
 moulding of their products. It is only one com- 
 partment in the great reservoir of social expe- 
 rience and truth and wisdom from which the 
 judges of the common law must draw their in- 
 _ spiration and their knowledge. | 
 
 In thus recognizing, as I do, that the power 
 to declare the law carries with it the power, and 
 within limits the duty, to make law when none 
 exists, I do not mean to range myself with the 
 jurists who seem to hold that in reality there is 
 no law except the decisions of the courts. I 
 think the truth is midway between the extremes 
 that are represented at one end by Coke and 
 Hale and Blackstone and at the other by such 
 authors as Austin and Holland and Gray and 
 Jethro Brown. The theory of the older writers 
 
 124 
 
THE JUDGE AS A LEGISLATOR 
 
 was that judges did not legislate at all. A pre- 
 existing rule was there, imbedded, if concealed, 
 in the body of the customary law. All that the 
 judges did, was to throw off the wrappings, and 
 expose the statue to our view.*® Since the days 
 - of Bentham and Austin, no one, it is believed, 
 has accepted this theory without deduction or 
 reserve, though even in modern decisions we find 
 traces of its lingering influence. Today there is 
 rather danger of another though an opposite 
 error. From holding that the law-is-never ‘made 
 by judges, the votaries of the Austinian analysis 
 have been led at times to the conclusion that it is 
 never made by anyone else. Customs, no matter 
 how firmly established, are not law, they say, i 
 until adopted by the courts.*’ Even statutes are | 
 not law because the courts must fix their mean- | 
 ing. That is the view of Gray in his “Nature and 
 
 Sources of the Law.’** “The true view, as I 
 
 36 Cf. Pound, 27 Harvard L. R. 731, 733. 
 
 37 Austin, “Jurisprudence,” vol. I, 37, 104; Holland, 
 “Jurisprudence,” p. 54; W. Jethro Brown, “The Aus- 
 ’ tinian Theory of Law,” p. 311. 
 
 88 Sec. 602. 
 
 125 
 
THE JUDGE AS A LEGISLATOR 
 
 submit,” he says, “is that the Law is what the 
 Judges declare; that statutes, precedents, the 
 _ opinions of learned experts, customs and morality 
 are the sources of the Law.’°? So, Jethro Brown 
 ina paper on “Lawand Evolution,’*® tells us that 
 a statute, till construed, is not real law. It is only 
 “ostensible” law. Real law, he says, is not found 
 anywhere except in the judgment of a court. In 
 that view, even past decisions are not law. The 
 courts may overrule them. For the same reason 
 present decisions are not law, except for the 
 parties litigant. Men go about their business from 
 day to day, and govern their conduct by an zgnis 
 fatuus. The rules to which they yield obedience 
 are in truth not law at all. Law never is, but is 
 always about to be. It is realized only when 
 embodied in a judgment, and in being realized, 
 expires. There are no such things as rules or 
 principles: there are only isolated dooms. | 
 
 A definition of law which in effect denies the 
 
 possibility of law since it denies the possibility of 
 
 89 Cf. Gray, supra, secs. 276, 366, 369. 
 40 29 Yale L. J. 304. 
 
 126 
 
 os, 
 
THE JUDGE AS A LEGISLATOR 
 
 rules of general operation,** must contain within 
 itself the seeds of fallacy and error. Analysis is 
 useless if it destroys what it is intended to ex- 
 plain. Law and obedience to law are facts con- 
 firmed every day to us all in our experience of 
 life. If the result of a definition is to make them 
 seem to be illusions, so much the worse for the 
 definition; we must enlarge it till it is broad 
 enough to answer to realities. The outstanding 
 truths of life, the great and unquestioned 
 phenomena of society, are not to be argued away 
 as myths and vagaries when they do not fit 
 within our little moulds. If necessary, we must 
 remake the moulds. We must seek a conception 
 _of law which realism can accept as true. Statutes 
 do not cease to be law because the power to 
 fix their meaning in case of doubt or ambiguity 
 has been confided to the courts. One might as 
 well say for like reasons that contracts have no 
 reality as expressions of a contracting will. The 
 quality of law is not withdrawn from all prece- 
 
 dents, however well established, because courts 
 
 41 Cf. Beale, “Conflict of Laws,” p. 153, sec. 129. 
 
 127 
 
THE JUDGE AS A LEGISLATOR 
 
 sometimes exercise the privilege of overruling 
 their own decisions. Those, I think, are the con- 
 clusions to which a sense of realism must lead 
 us. No doubt there is a field within which judicial 
 judgment moves untrammeled by fixed princi- 
 ples. Obscurity of statute or of precedent or of 
 customs or of morals, or collision between some 
 or all of them, may leave the law unsettled, and 
 cast a duty upon the courts to declare it retro- 
 spectively in the’ exercise of a power frankly 
 legislative in function. In such cases, all that 
 
 the parties to the controversy can do is to fore- 
 cast the declaration of the rule as best they can, 
 and govern themselves accordingly. We must 
 not let these occasional and relatively rare in- 
 stances blind our eyes to the innumerable in- 
 stances where there is neither obscurity nor 
 collision nor opportunity for diverse judgment. 
 Most of us live our lives in conscious submission 
 to rules of law, yet without necessity of resort 
 to the courts to ascertain our rights and duties. 
 Lawsuits are rare and catastrophic experiences 
 for the vast majority of men, and even when the 
 
 128 
 
THE JUDGE AS A LEGISLATOR 
 
 catastrophe ensues, the controversy relates most 
 often not to the law, but to the facts. In count- 
 less litigations, the law is so clear that judges 
 have no discretion. They “have the ‘right to Tegis- 
 Tate within ¢ gaps, but often en there a are no gaps. We 
 . “shall b have a false view of the landscape if we 
 look at Gisaeithe daste ‘spaces only, 2 and refuse to see 
 the acres already sown and fruitful. I think the 
 difficulty has its origin in the failure to distin- 
 guish between right and power, between the 
 command embodied in a judgment and the jural 
 principle to which the obedience of the judge is 
 
 due. Judges have, of course, the power, though 
 
 not the right, to ignore the mandate of a statute, | 
 
 and render judgment in despite of it. They have 
 the power, though not the right, to travel beyond 
 the walls of the interstices, the bounds set to 
 judicial innovation by precedent and custom. 
 None the less, by that abuse of power, they vio- 
 late the law. If they violate it willfully, i.e., with 
 guilty and evil mind, they commit a legal wrong, 
 and may be removed or punished even though 
 the judgments which they have rendered stand. 
 
 129 
 
THE JUDGE AS A LEGISLATOR 
 
 In brief, there are jural principles which limit 
 the freedom of the judge,** and, indeed, in the 
 view of some writers, which we do not need to 
 endorse, the freedom of the state itself.** Life 
 may be lived, conduct may be ordered, it is lived 
 and ordered, for unnumbered human beings 
 without bringing them within the field where 
 the law can be misread, unless indeed the mis- 
 reading be accompanied by conscious abuse of 
 power. Their conduct never touches the border- 
 land, the penumbra, where controversy begins. 
 They go from birth to death, their action 
 restrained at every turn by the power of the 
 state, and not once do they appeal to judges to 
 mark the boundaries between right and wrong. 
 I am unable to withhold the name of law from 
 rules which exercise this compulsion over the 
 fortunes of mankind.** ; 
 
 42 Salmond, “Jurisprudence,” p. 157; Sadler, “Rela- 
 tion of Law to Custom,” pp. 4, 6, 50; F. A. Geer, 
 9 L. Q. R. 153. 
 
 43 Duguit, “Law and The State,” 31 Harvard L. R. 1; 
 Vinogradoff, “The Crisis of Modern Jurisprudence,” 
 29 Yale L. J. 312; Laski, “Authority in the Modern 
 State,” pp. 41, 42. 
 
 44“Law is the body of general principles and of 
 
 130 
 
THE JUDGE AS A LEGISLATOR 
 
 The old Blackstonian theory of pre-existing 
 rules of law which judges found, but did not 
 make, fitted in with a theory still more ancient, 
 the theory of a law of nature. The growth of 
 that conception forms a long and interesting 
 chapter in the history of jurisprudence and 
 political science.*® The doctrine reached its high- 
 est development with the Stoics, has persisted in 
 varying phases through the centuries, and im- 
 bedding itself deeply in common forms of speech 
 and thought, has profoundly influenced the 
 speculations and ideals of men in statecraft and 
 in law. For a time, with the rise and dominance 
 of the analytical school of jurists, it seemed dis- 
 credited and abandoned.** Recent juristic thought 
 has given it a new currency, though in a form so 
 
 profoundly altered that the old theory survives 
 
 particular rules in accordance with which civil rights 
 are created and regulated, and wrongs prevented or re- 
 dressed” (Beale, “Conflict of Laws,” p. 132, sec. 114). 
 
 45 Salmond, “The Law of Nature,” 11 L. Q. R. 121; 
 Pollock, “The History of the Law of Nature,” 1 Colum- 
 bia L. R. 11; 2 Lowell, “The Government of England,” 
 477, 478; Maitland’s “Collected Papers,” p. 23. 
 
 46 Cf, Ritchie, “Natural Rights.” 
 
 131 
 
THE JUDGE AS A LEGISLATOR 
 
 in little more than name.*” The law of nature is 
 no longer conceived of as something static and 
 eternal. It does not override human or positive 
 law. It is the stuff out of which human or positive 
 law is to be woven, when other sources fail.*® 
 “The modern philosophy of law comes in contact 
 with the natural law philosophy in that the one 
 as well as the other seeks to be the science of 
 the just. But the modern philosophy of law de-: 
 parts essentially from the natural-law philosophy 
 in that the latter seeks a just, natural law out- 
 side of positive law, while the new philosophy of 
 law desires to deduce and fix the element of the 
 just in and out of the positive law—out of what 
 it is and of what it is becoming. The natural law 
 school seeks an absolute, ideal law, ‘natural law,’ 
 the law kar’ e€oxynv, by the side of which 
 ‘positive law has only secondary importance. The 
 
 47 Pound, 25 Harvard L. R. 162; Charmont, “La 
 Renaissance du droit naturel,” passim; also transl., 7 
 Modern Legal Philosophy Series, 106, 111; Demogue, 
 “Analysis of Fundamental Notions,’ 7 Modern Legal 
 Philosophy Series, p. 373, sec. 212; Laski, “Authority 
 in the Modern State,” p. 64. 
 
 48 Vander Eycken, op. cit., p. 401. 
 
 132 
 
THE JUDGE AS A LEGISLATOR 
 modern philosophy of law recognizes that there 
 is only one law, the positive law, but it seeks its 
 ideal side, and its enduring idea.”** I am not 
 concerned to vindicate the accuracy of the 
 nomenclature by which the dictates of reason 
 and conscience which the judge is under a duty 
 to obey, are given the name of law before he has 
 embodied them in a judgment and set the im- 
 _ primatur of the law upon them.*° I shall not be 
 troubled if we say with Austin and Holland and 
 Gray and many others that till then they are 
 moral precepts, and nothing more. Such verbal 
 disputations do not greatly interest me. What 
 really matters is this, that the judge is under a 
 duty, within the limits of his. power. of innova- 
 tion, to maintain a relation between law and 
 
 morals, between the precepts of jurisprudence 
 
 49 Berolzheimer, “System der Rechts und Wirth- 
 schaftsphilosophie,” vol. II, 27, quoted by Pound, “Scope 
 and Purpose of Sociological Jurisprudence,” 24 Harvard 
 L. R. 607; also Isaacs, “The Schools of Jurisprudence,” 
 31 Harvard L. R. 373, 389; and for the mediaeval 
 view, Maitland’s “Gierke, Political Theories of the 
 Middle Age,” pp. 75, 84, 93, 173. 
 
 5° Holland, “Jurisprudence,” p. 54. 
 
 133 
 
THE JUDGE AS A LEGISLATOR 
 and those of reason and good conscience. I nak 
 pose it is true in a certain sense that this duty 
 was never doubted." One feels at times, however, 
 that it was obscured by the analytical jurists, 
 who, in stressing verbal niceties of definition, 
 - made a corresponding sacrifice of emphasis upon 
 the deeper and finer realities of ends and aims 
 and functions. The constant insistence that 
 morality and justice are not law, has tended to 
 breed distrust and contempt of law as something 
 to which morality and justice are not merely 
 alien, but hostile. The new development of 
 “naturrecht” may be pardoned infelicities of 
 phrase, if it introduces us to new felicities of 
 methods and ideals. Not for us the barren 
 logomachy that dwells upon the contrasts be- 
 tween law and justice, and forgets their deeper 
 harmonies. For us rather the trumpet call of 
 the French “code civil”:°? “Le juge, qui refusera 
 de juger, sous prétexte du silence, de l’obscurité 
 
 51 See Gray, supra, p. 286, secs. 644, 645. 
 
 52 Art. 4; Gray, supra, sec. 642; Gény, op. cit., vol. 
 II, p. 75, sec. 155; Gnaeus Flavius, “Der Kampf um die 
 Rechtswissenschaft,” p. 14. 
 
 134 
 
THE JUDGE AS A LEGISLATOR 
 
 ou de l’insuffisance de la loi, pourra étre pour- 
 Suivi comme coupable de déni de justice.”** “It 
 is the function of our courts,” says an acute 
 critic, “to keep the doctrines up to date with} 
 the mores by continual restatement and by giv- 
 _ ing them a continually new content. This is 
 judicial legislation, and the judge legislates at 
 his peril. Nevertheless, it is the necessity and 
 duty of such legislation that gives to judicial 
 office its highest honor; and no brave and honest 
 judge shirks the duty or fears the peril.’””** es 
 You may say that there is no assurance that 
 judges will interpret the mores of their day more 
 wisely and truly than other men. I am not dis- 
 posed to deny this, but in my view it is quite 
 beside the point. The point is rather that this 
 power of interpretation must be lodged some- 
 where, and the custom of the constitution has 
 lodged it in the judges. If they are to fulfill their 
 
 53“The judge who shall refuse to give judgment 
 under pretext of the silence, of the obscurity, or of 
 the inadequacy of the law, shall be subject to prosecu- 
 tion as guilty of a denial of justice.” 
 
 54 Arthur L. Corbin, 29 Yale L. J. 771. 
 
 135 
 
THE JUDGE AS A LEGISLATOR 
 function as judges, it could hardly be lodged else- 
 where. Their conclusions must, indeed, be subject 
 to constant testing and retesting, revision and 
 readjustment; but if they act with conscience 
 and intelligence, they ought to attain in their 
 conclusions a fair average of truth and wisdom. 
 The recognition of this power and duty to shape 
 the law in conformity with the customary moral- 
 ity, is something far removed from the destruc- 
 tion of all rules and the substitution in every 
 instance of the individual sense of justice, the 
 arbitrium boni viri.’ That might result in a 
 benevolent despotism if the judges were benevo- 
 lent men. It would put an end to the reign of law. 
 The method of sociology, even though applied 
 with greater freedom than in the past, is heading 
 us toward no such cataclysm. The form and 
 structure of the organism are fixed. The cells in 
 which there is motion do not change the pro- 
 portions of the mass. Insignificant is the power 
 
 of innovation of any judge, when compared with 
 
 55 Cf. Standard Chemical Corp. v. Waugh Corp., 231 
 N. Y. 51, 55. 
 
 136 
 
THE JUDGE AS A LEGISLATOR 
 the bulk and pressure of the rules that hedge 
 him on every side. Innovate, however, to some 
 extent, he must, for with new conditions there 
 must be new rules. All that the method o 
 sociology demands is that within this narrow 
 _ range of choice, he shall search for social justice. 
 There were stages in the history of the law when 
 a method less psychological was needed. The 
 old quantitative tests of truth did not fail in 
 their day to serve the social needs.** Their day 
 has long passed. Modern juristic thought, turn- 
 ing in upon itself, subjecting the judicial process 
 to introspective scrutiny, may have given us a 
 new terminology and a new emphasis. But in 
 truth its method is not new. It is the method of 
 the great chancellors, who without sacrificing 
 uniformity and certainty, built up the system of 
 equity with constant appeal to the teachings of 
 right reason and conscience. It is the method by 
 
 which the common law has renewed its life at 
 
 56 Flavius, “Der Kampf um die Rechtswissenschaft,” 
 pp. 48, 49; Ehrlich, “Die juristische Logik,” pp. 201, 
 292. 
 
 137 
 
THE JUDGE AS A LEGISLATOR 
 
 the hands of its great masters—the method of 
 Mansfield and Marshall and Kent and Holmes. 
 
 There have, indeed, been movements, and in 
 our own day, to make the individual sense of 
 justice in law as well as in morals the sole 
 criterion of right and wrong. We are invited, 
 in Gény’s phrase, to establish a system of 
 “juridical anarchy” at worst, or of “judicial im- 
 pressionism” at best.°’ The experiment, or some- 
 thing at least approaching it, was tried not long 
 ago in France. There are sponsors of a like creed 
 among the critics of our own courts.°* The 
 French experiment, which has become known as 
 “le phénoméne Magnaud,” is the subject of a 
 chapter in the epilogue to the last edition, pub- 
 lished in 1919, of Gény’s brilliant book.*® Be- 
 tween 1889 and 1904, the tribunal of the first 
 
 57 Gény, op. cit., ed. of 1919, vol. II, p. 288, sec. 196; 
 Pp. 305, sec. 200. 
 
 58 Bruce, “Judicial Buncombe in North Dakota and 
 Other States,” 88 Central L. J. 136; Judge Robinson’s 
 Reply, 88 id. 155; “Rule and Discretion in the Ad- — 
 ministration of Justice,’ 33 Harvard L. R. 792. 
 
 59 Gény, op. cit., ed. of 1919, vol. II, p. 287, sec. 196, 
 et seq. 
 
 138 
 
THE JUDGE AS A LEGISLATOR 
 instance of Chateau-Thierry, following the lead 
 
 of its chief, le President Magnaud, initiated a 
 revolt against the existing order in jurisprudence. 
 Its members became known as the good judges, 
 “les bons juges.”’ They seem to have asked them- 
 selves in every instance what in the circum- 
 stances before them a good man would wish to 
 do, and to have rendered judgment accordingly. 
 Sometimes this was done in the face of incon- 
 
 sistent statutes. I do not profess to know their 
 
 work at first hand. Gény condemns it, and says | 
 
 the movement has spent its force. Whatever the 
 merits or demerits of such impressionism may be, 
 that is not the judicial process as we know it in 
 our law.®° Our jurisprudence has held fast to 
 Kant’s categorical imperative, “Act on a maxim 
 which thou canst will to be law universal.” It 
 has refused to sacrifice the larger and more in- 
 clusive good to the narrower and smaller. A con- 
 tract is made. Performance is burdensome and 
 perhaps oppressive. If we were to consider .only 
 the individual instance, we might be ready to 
 60 Salmond, “Jurisprudence,” pp. 19, 20. 
 
 139 
 
 Prawn 
 

 
 
 THE JUDGE AS A LEGISLATOR 
 release the promisor. We look beyond the par- 
 ticular to the universal, and shape our judgment 
 in obedience to the fundamental interest of 
 society that contracts shall be fulfilled. There is 
 a wide gap between the use of the individual 
 sentiment of justice as a substitute for law, and 
 its use as one of the tests and touchstones in — 
 construing or extending law. I think the tone and 
 temper in which the modern judge should | 
 about his task are well expressed in the first 
 article of the Swiss Civil Code of 1907, an 
 article around which there has grown up a large 
 ody of juristic commentary. “The statute,” says 
 the Swiss Code, “governs all matters within the 
 letter or the spirit of any of its mandates. In 
 default of an applicable statute, the judge is to 
 pronounce judgment according to the customary 
 law, and in default of a custom according to the 
 rules which he would establish if he were to 
 assume the part of a legislator. He is to draw 
 his inspiration, however, from the solutions con- 
 secrated by the doctrine of the learned and the 
 jurisprudence of the courts—par la doctrine et 
 
 140 
 
THE JUDGE AS A LEGISLATOR 
 
 la jurisprudence.”** There, in the final precept, 
 is the gist of the difference between “le phé- 
 noméne Magnaud,” and justice according to 
 law. The judge, even when he is free, is still .not 
 wholly free. He is not to innovate.at-pleasure. 
 He is not a knight-errant, roaming at will in 
 ’ pursuit of his own ideal of beauty or of goodness. 
 He is to draw his inspiration from consecrated 
 principles. He is not to yield to spasmodic senti- 
 ment, to vague and unregulated benevolence. 
 He is to exercise a discretion informed by tradi- 
 tion, methodized by analogy, disciplined by sys- 
 tem, and subordinated to “the primordial. neces- 
 ‘sity of order in the social life.”*? Wide enough 
 in all conscience is the field of discretion that 
 
 remains. 
 61 Gény, op. cit., II, p. 213; also Perick, “The Swiss 
 
 Code,” XI, Continental Legal Hist. Series, p. 238, sec. 5. 
 62 Gény, op. cit., II, p. 303, sec. 200. 
 
 I4I 
 
Lecture IV. Adherence to Precedent. 
 The Subconscious Element in the 
 
 Judicial Process. Conclusion 
 
 HE system of law-making by judicial deci- 
 sions which supply the rule for transac- 
 
 tions closed before the decision was announced, 
 would indeed be intolerable in its hardship and 
 oppression if natural law, in the sense in which 
 I have used the term, did not supply the main 
 rule of judgment to the judge when precedent 
 and custom fail or are displaced. Acquiescence 
 in such a method has its basis in the belief that 
 when the law has left the situation uncovered 
 by any pre-existing rule, there is nothing to do 
 except to have some impartial arbiter declare 
 what fair and reasonable men, mindful of the 
 habits of life of the community, and. of. the 
 standards of justice and fair dealing prevalent 
 among them, ought in such circumstances to do, 
 with no rules except those of custom and con- 
 
 142 
 
ADHERENCE TO PRECEDENT 
 
 science to regulate their conduct. The feeling is 
 that nine ‘times out of. ten, if not oftener, the 
 conduct of right-minded men would not have 
 been different if the rule embodied in the decision 
 
 had been announced by statute in advance. In 
 
 _ the small minority of cases, where ignorance has 
 
 counted, it is as likely to have affected one side 
 as the other; and since a controversy has arisen 
 and must be determined somehow, there is noth- 
 ing to do, in default of a rule already made, but 
 to constitute some authority which will make 
 it after the event. Some one must be the loser; 
 it is part of the game of life; we have to pay 
 in countless ways for the absence of prophetic 
 vision. No doubt the ideal system, if it were 
 attainable, would be a code at once so flexible 
 and so minute, as to supply in advance for 
 every conceivable situation the just and fitting 
 rule. But life is too complex to bring the attain- 
 ment of this ideal within the compass of human 
 powers. We must recognize the truth, says Gény,* 
 that the will (Ja volonté) which inspires a statute 
 1 Op. cit., preface, p. xvi. 
 143 
 
ADHERENCE TO PRECEDENT 
 
 “extends only over a domain of concrete facts, 
 very narrow and very limited. Almost always, a 
 statute has only a single point in view. All 
 history demonstrates that legislation intervenes 
 only when a definite abuse has disclosed _ itself, 
 through the excess of which public feeling has 
 finally been aroused. When the legislator inter- 
 poses, it is to put an end to such and such facts, 
 very clearly determined, which have provoked 
 his decision. And if, to reach his goal, he thinks 
 it proper to proceed along the path of general 
 ideas and abstract formulas, the principles that 
 he announces have value, in his thought, only in 
 the measure in which they are applicable to the 
 evils which it was his effort to destroy, and to 
 similar conditions which would tend to spring 
 from them. As for other logical consequences to 
 be deduced from these principles, the legislator 
 has not suspected them; some, perhaps many, 
 if he had foreseen, he would not have hesi- 
 tated to repudiate. In consecrating them, no 
 one can claim either to be following his will or to 
 be bowing to his judgment. All that one does 
 P44 
 
ADHERENCE TO PRECEDENT 
 
 thereby is to develop a principle, henceforth 
 isolated and independent of the will which 
 created it, to transform it into a new entity, 
 which in turn develops of itself, and to give it 
 an independent life, regardless of the will of the 
 _ legislator and most often in despite of it.” These 
 are the words of a French jurist, writing of a 
 legal system founded on a code. The gaps in- 
 evitable in such a system must, at least in equal 
 measure, be inevitable in a system of case law 
 built up, haphazard, through the controversies 
 of litigants.? In each system, hardship must at 
 times result from postponement of the rule of 
 action till a time when action is complete. It is 
 one of the consequences of the limitations of the 
 human intellect and of the denial to legislators 
 and judges of infinite prevision. But the truth is, 
 as I have said, that even when there is ignorance 
 of the rule, the cases are few in which ignorance 
 has determined conduct. Most often the con- 
 
 troversy arises about something that would 
 
 2 Pollock, “Essays in Jurisprudence and Ethics; The 
 Science of Case Law,” p. 241. 
 
 145 
 
ADHERENCE TO PRECEDENT 
 
 have happened anyhow. An automobile is manu- 
 factured with defective wheels. The question is 
 whether the manufacturer owes a duty of in- 
 spection to anyone except the buyer.*? The oc- 
 cupant of the car, injured because of the defect, 
 presses one view upon the court; the manu- 
 facturer, another. There is small chance, which- 
 ever party prevails, that conduct would have 
 been different if the rule had been known in 
 advance. The manufacturer did not say to him- 
 self, “I will not inspect these wheels, because that 
 is not my duty.” Admittedly, it was his duty, at 
 least toward the immediate buyer. A wrong in 
 any event has been done. The question is to 
 what extent it shall entail unpleasant conse- 
 quences on the wrongdoer. 
 
 I say, therefore, that in the vast majority of | 
 cases the retrospective effect of judge-made law 
 is felt either to involve no hardship or only such 
 hardship as is inevitable where no rule has been 
 declared. I think it is significant that when the 
 hardship is felt to be too great or to be un- 
 
 3 MacPherson v. Buick Motor Co., 217 N. Y. 382. 
 
 146 
 
ADHERENCE TO PRECEDENT 
 
 necessary, retrospective operation is withheld. 
 Take the cases where a court of final appeal has 
 declared a statute void, and afterwards, reversing 
 itself, declares the statute valid. Intervening 
 transactions have been governed by the first 
 decision. What shall be said of the validity of 
 such transactions when the decision is overruled? 
 Most courts in a spirit of realism have held that 
 the operation of the statute has been suspended 
 in the interval.* It may be hard to square such 
 a ruling with abstract dogmas and definitions. 
 When so much else that a court does, is done 
 with retroactive force, why draw the line here? 
 The answer is, I think, that the line is drawn 
 here, because the injustice and oppression of a 
 refusal to draw it would be so great as to be in- 
 
 tolerable. We will not help out the man who has 
 
 * Harris v. Jex, 55 N. Y. 421; Gelpcke v. Dubuque, 
 z Wall. 125; Holmes, J., in Kuhn v. Fairmount Coal 
 Co., 215 U. S. 349, 371; 29 Harvard L. R. 80, 103; 
 -Danchey Co. v. Farmy, 105 Misc. 470; Freeman, 
 “Retroactive Operation of Decisions,’ 18 Columbia 
 L. R. p. 230; Gray, supra, secs. 547, 548; Carpenter, 
 “Court Decisions and the Common Law,” 17 Columbia 
 L.R. 593. 
 
 147 
 
ADHERENCE TO PRECEDENT 
 
 trusted to the judgment of some inferior court.® 
 In his case, the chance of miscalculation is felt 
 to be a fair risk of the game of life, not different 
 in degree from the risk of any other misconcep- 
 tion of right or duty. He knows that he has 
 taken a chance, which caution often might have 
 avoided. The judgment of a court of final appeal 
 is felt to stand upon a different basis. I am not 
 sure that any adequate distinction is to be drawn 
 between a change of ruling in respect of the 
 validity of a statute and a change of ruling in 
 respect of the meaning or operation of a statute,® 
 or even in respect of the meaning or operation 
 of a rule of common law.” Where the line of 
 division will some day be located, I will make no 
 attempt to say. I feel assured, however, that its 
 location, wherever it shall be, will be governed, 
 not by metaphysical conceptions of the nature 
 of judge-made law, nor by the fetich of some im- 
 
 placable tenet, such as that of the division of 
 
 5 Evans v. Supreme Council, 223 N. Y. 407, 503. 
 
 6 Douglass v. County of Pike, ror U. S. 677. 
 
 7Cf. Wigmore, “The Judicial Function,” Preface to 
 9 Modern Legal Philosophy Series, pp. xxxvii, xxxviii. 
 
 148 
 
ADHERENCE TO PRECEDENT 
 governmental powers,* but by considerations of 
 convenience, of utility, and of the deepest senti- 
 ments of justice. 
 
 In these days, there is a good deal of discus- 
 ‘sion whether the rule of adherence to precedent 
 
 . ‘ought to be abandoned altogether.® I would not 
 
 go so far myself. I think adherence to to precedent — 
 
 should be the rule and not the exception. ji have 
 already had occasion to dwell upon some of the 
 considerations that sustain it. To these I may 
 _add that the labor of judges would be increased 
 almost to the breaking point if every past deci- 
 sion could be reopened in every case, and one 
 _could not lay one’s own course of bricks on the 
 secure foundation of the courses laid by others 
 who had gone before him. Perhaps the constitu- 
 tion of my own court has tended to accentuate 
 this belief. We have had ten judges, of. whom 
 
 8 Laski, “Authority in the Modern State,” pp. 70, 71; 
 Green, “Separation of Governmental Powers,” 29 Yale 
 i J. 372. 
 
 ®“Rule and Discretion in the Administration of 
 Justice,’ 33 Harvard L. R. 972; 29 Yale L. J. 909; 
 34 Harvard L. R. 74; 9 Modern Legal Philosophy Series, 
 Preface, p. xxxvi. 
 
 149 
 
 et ing 
 piatsen es 
 tet - = 
 
ADHERENCE TO PRECEDENT 
 only seven sit at a time. It happens again and 
 again, where the question is a close one, that a 
 case which one week is decided one way might 
 be decided another way the next if it were then. 
 heard for the first time. The situation would, 
 however, be intolerable if the weekly changes. in 
 the composition of the court were accompanied 
 by changes in its rulings. In such circumstances. 
 there is nothing to do except to stand by the 
 errors of our brethren of the week. before, 
 whether we relish them or not. But I am ready 
 to concede that the rule of adherence to prece- 
 dent, though it ought not to be abandoned, ought 
 ~~to be in some degree relaxed. I think that when 
 a rule, after it has been duly tested by experience, 
 has been found to be inconsistent with the sense 
 of justice or with the social welfare, there should 
 be less hesitation in frank avowal and full aban- 
 donment. We have had to do this sometimes in 
 the field of constitutional law.*® Perhaps we 
 should do so oftener in fields of private law 
 where considerations of social utility are not so 
 10 Klein v. Maravelas, 219 N. Y. 383. 
 150 
 
ADHERENCE TO PRECEDENT 
 
 aggressive and insistent. There should be greater 
 readiness to abandon an untenable position when 
 the rule to be discarded may not reasonably be 
 supposed to have determined the conduct of the 
 litigants, and particularly when in its origin it 
 was the product of institutions or conditions 
 which have gained a new significance or develop- 
 ment with the progress of the years. In such cir- 
 cumstances, the words of Wheeler, J., in Dwy v. 
 Connecticut Co., 89 Conn. 74,99, express the tone 
 and temper in which problems should be met: 
 “That court best serves the law which recognizes 
 that the rules of law which grew up in a remote 
 - generation may, in the fullness of experience, be 
 found to serve another generation badly, and wey 
 which discards the old rule when it finds od 
 another rule of law represents what should be ac] 
 cording to the established and settled judgment 
 of society, and no considerable property rights 
 have become vested in reliance upon the old rule. 
 It is thus great writers upon the common law 
 have discovered the source and method of its 
 growth, and in its growth found its health and 
 
 151 
 
ADHERENCE TO PRECEDENT 
 
 life. It is not and it should not be stationary. 
 Change of this character should not be left to the 
 legislature.” If judges have wofully misinter- 
 preted the mores of their day, or if the mores 
 of their day are no longer those of ours, they 
 ought not to tie, in helpless submission, the hands 
 of their successors. 
 
 Let me offer one or two examples to make my 
 meaning plainer. I offer them tentatively and 
 without assurance that they are apt. They will 
 be helpful none the less. The instance may be 
 rejected, but the principle abides. 
 
 It is a rule of the common law that a surety 
 is discharged from liability if the time of pay- 
 ment is extended by contract between the princi- 
 pal debtor and the creditor without the surety’s 
 consent. Even an extension for a single day will 
 be sufficient to bring about that result.* With- 
 out such an extension, the surety would have the 
 privilege upon the maturity of the debt of mak- 
 ing payment to the creditor, and demanding 
 immediate subrogation to the latter’s remedies 
 
 11N. Y. Life Ins. Co. v. Casey, 178 N. Y. 381. 
 
 152 
 
ADHERENCE TO PRECEDENT 
 against the principal. He must, therefore, it is 
 said, be deemed to have suffered prejudice if, 
 by extension of the due date, the right has been 
 postponed. I have no doubt that this rule may 
 justly be applied whenever the surety can show 
 _ that the extension has resulted in actual damage, 
 as where the principal in the interval has become 
 insolvent, or the value of the security has been 
 impaired, though even in such circumstances the 
 measure of exoneration ought in justice to be de- 
 termined by the extent of the damage suffered. 
 Perhaps there might be justice in permitting 
 exoneration whenever the surety had tendered 
 payment of the debt, and demanded subrogation 
 to the remedies against the debtor. Perhaps the 
 burden of disproving prejudice ought to be cast 
 upon the creditor. No such limitations have been 
 recognized. The rule applies to cases where 
 neither tender nor actual damage is established 
 or pretended. The law has shaped its judgments 
 upon the fictitious assumption that a surety, 
 _ who has probably lain awake at nights for fear 
 
 that payment may some day be demanded, has 
 
 153 
 
ADHERENCE TO PRECEDENT 
 
 in truth been smarting under the repressed de- 
 sire to force an unwelcome payment on a reluc- 
 tant or capricious creditor. The extended period 
 has gone by; the surety has made no move, has 
 not even troubled himself to inquire; yet he is 
 held to be released on the theory that were it 
 not for the extension, of which he knew nothing, 
 and by which his conduct could not have been 
 controlled, he would have come forward volun- 
 tarily with a tender of the debt. Such rules are 
 survivals of the days when commercial dealings 
 were simpler, when surety companies were un- 
 known, when sureties were commonly generous 
 friends whose confidence had been abused, and 
 when the main effort of the courts seems to have 
 been to find some plausible excuse for letting 
 them out of their engagements. Already I see 
 some signs of a change of spirit in decisions of 
 recent dates.’* I think we may well ask our- 
 
 selves whether courts are not under a duty to go 
 
 12 Wilkinson v. McKemmie, 229 U. S. 590, 593; 
 U. S. v. McMullen, 222 U. S. 460, 468; Richardson v. 
 County of Steuben, 226 N. Y. 13; Assets Realization Co. 
 v. Roth, 226 N. Y. 370. 
 
 154 
 
ADHERENCE TO PRECEDENT 
 
 farther, and place this branch of the law upon 
 a basis more consistent with the realities of 
 business experience and the moralities of life. 
 
 It is another rule of the common law that a 
 parol agreement, though subsequently made, is 
 ineffective to vary or discharge a contract under 
 seal.‘° In days when seals counted for a good 
 deal, there may have been some reason in this 
 recognition of a mystical solemnity. In our day, 
 when the perfunctory initials “L. S.” have re- 
 placed the heraldic devices, the law is conscious 
 of its own absurdity when it preserves the rubrics 
 of a vanished era.** Judges have made worthy, 
 if shamefaced, efforts, while giving lip service to 
 the rule, to riddle it with exceptions and by 
 distinctions reduce it to a shadow.’® A recent 
 case suggests that timidity, and not reverence, 
 
 has postponed the hour of dissolution.** The law 
 
 13 McCreery v. Day, 119 N. Y. 1; 3 Williston on Con- 
 tracts, secs. 1835, 1836. 
 
 14 Harris v. Shorall, 230 N. Y. 343. 
 
 15 McCreery v. Day, supra; Thomson v. Poor, 147 
 N. Y. 402. 
 
 16 Harris v. Shorall, supra. 
 
 155 
 
ADHERENCE TO PRECEDENT 
 
 will have cause for gratitude to the deliverer 
 who will strike the fatal blow. 
 
 I have drawn illustrations from the field of 
 substantive law. The law of evidence and gen- 
 erally the whole subject of procedure supply 
 fields where change may properly be made with 
 a freedom even greater. The considerations of 
 policy that dictate adherence to existing rules 
 where substantive rights are involved, apply 
 with diminished force when it is a question of 
 the law of remedies. Let me take an illustration 
 from the law of evidence. A man is prosecuted 
 for rape. His defense is that the woman con- 
 sented. He may show that her reputation for 
 chastity is bad. He may not show specific, even 
 though repeated, acts of unchastity with another 
 man or other men.*”? The one thing that any 
 sensible trier of the facts would wish to know 
 above all others in estimating the truth of his de-. 
 fense, is held by an inflexible rule, to be some- 
 thing that must be excluded from the considera- 
 tion of the jury. Even though the woman takes 
 
 17 People v. Carey, 223 N. Y. 5109. 
 
 156 
 
ADHERENCE TO PRECEDENT 
 the stand herself, the defendant is not greatly 
 
 helped, for though he may then cross-examine 
 her about other acts, he is concluded by her 
 answer. Undoubtedly a judge should exercise a 
 certain discretion in the admission of such evi- 
 dence, should exclude it if too remote, and should 
 be prompt by granting a continuance or other- 
 wise to obviate any hardship resulting from 
 surprise. That is not the effect of the present 
 rule. The evidence is excluded altogether and 
 always. Some courts, indeed, have taken a differ- 
 ent view, but their number unfortunately is 
 small. Here, as in many other branches of the 
 law of evidence, we see an exaggerated reliance 
 upon general reputation as a test for the ascer- 
 tainment of the character of litigants or wit- 
 nesses. Such a faith is a survival of more simple 
 times. It was justified in days when men lived in 
 small communities. Perhaps it has some justifica- 
 tion even now in rural districts. In the life of 
 great cities, it has made evidence of character a 
 farce. Here, as in many other branches of adjec- 
 
 tive law, a spirit of realism should bring about a 
 
 157 
 
ADHERENCE TO PRECEDENT 
 
 harmony between present rules and present 
 needs. 
 
 _ None the less, the tule of adherence to prece- 
 | dent is applied with less rigidity in the United 
 | States than in England, and, I _think,..with a 
 ? rigidity that is is ania even here.. The House 
 of Lords  holds_ itself. absolutely .bound..by..its 
 own prior decisions.** The United States Supreme 
 Court and_ the. highest..courts.of .the..several 
 states overrule their own prior decisions. when 
 manifestly erroneous." Pollock, in a paper en- 
 titled “The Science of Case Law,” written more 
 than forty years ago, spoke of the freedom with 
 which this was done, as suggesting that the law 
 was nothing more than a matter of individual 
 opinion.” Since then the tendency has, if any- 
 
 thing, increased. An extreme illustration may be 
 
 18 Gray, supra, sec. 462; Salmond, “Jurisprudence,” 
 p. 164, sec. 64; Pound, “Juristic Science and the Law,” 
 31 Harvard L. R. 1053; London Street Tramways Co. v. 
 London County Council, 1898, A. C. 375, 379. 
 
 19 Pollock, “First Book of Jurisprudence,” pp. 310, 
 320; Gray, “Judicial Precedents,” 9 Harvard L. R. 27, 
 40. 
 
 20 “Essays in Jurisprudence and Ethics,” p. 245. 
 
 158 
 

 
 ADHERENCE TO PRECEDENT 
 
 found in a recent decision of a federal court.” 
 The plaintiff sued a manufacturer of automobiles 
 to recover damages for personal injuries resulting 
 from a defective car. On the first trial he had a 
 verdict, which the Circuit Court of Appeals for 
 _the second circuit reversed on the ground that 
 the manufacturer owed no duty to the plaintiff, 
 the occupant of the car, since the latter was not 
 the original purchaser, but had bought from 
 some one else.*? On a second trial, the judge, in 
 obedience to this ruling, dismissed the complaint, 
 and a writ of error brought the case before the 
 same appellate court again. In the meantime, 
 _ the New York Court of Appeals had held, in an 
 action against another manufacturer, that there 
 was a duty in such circumstances, irrespective 
 of privity of contract.2* The federal court fol- 
 lowed that decision, overruled its prior ruling, 
 and reversed the judgment of dismissal which 
 had been entered in compliance with its mandate. 
 The defendant in that case who first reversed the 
 
 21 Johnson v. Cadillac Motor Co., 261 Fed. Rep. 878. 
 22 221 Fed. 8or. 
 23 MacPherson v. Buick Mfg. Co., 217 N. Y. 382. 
 
 159 
 
ADHERENCE TO PRECEDENT 
 
 judgment because the complaint had not been 
 dismissed, and then suffered a reversal because 
 on the same evidence the complaint had been 
 dismissed, probably has some views of his own 
 about the nature of the judicial process. I do not 
 attempt to say whether departure from the rule 
 of adherence to precedent was justified in such 
 conditions. One judge dissenting held the view 
 that the earlier decision should have been applied 
 as the law of the case irrespective of its correct- 
 ness, like the rule of res adjudicata. The con- 
 clusion of the majority of the court, whether 
 right or wrong, is interesting as evidence of a 
 spirit and a tendency to subordinate preceden : 
 to justice. How to reconcile that tendency, which 
 is a growing and in the main a wholesome one, 
 with the need of uniformity and certainty, is | 
 of the great problems confronting the lawyers 
 and judges of our day. We shall have to feel 
 our way here as elsewhere in the law. Some- 
 where between worship of the past and exalta- 
 tion of the present, the path of safety will be 
 found. 
 
 160 
 
ADHERENCE TO PRECEDENT 
 
 Our survey of judicial methods teaches.us, I 
 think, the lesson that the whole subject-matter 
 of jurisprudence is more plastic, more malleable, 
 right and wrong less preordained and constant, 
 than most of us, without the aid of some such 
 analysis, have been accustomed .to believe. We 
 like to picture to ourselves the field of the law 
 as accurately mapped and plotted. We draw our 
 little lines, and they are hardly down before we 
 blur them. As in time and space, so here. Divi- 
 sions are working hypotheses, adopted for con- 
 venience. We are tending more and more toward 
 an appreciation of the truth that, afterall, there 
 are few rules; there are. chiefly standards and 
 degrees. It is a question of degree whether I have 
 been negligent. It is a question of degree whether 
 in the use of my own land, I have created a 
 nuisance which may be abated by my neighbor. 
 It is a question of degree whether the law which 
 takes my property and limits my conduct, im- 
 pairs my liberty unduly. So also the duty of a 
 judge becomes itself a question of degree, and 
 
 161 
 
ADHERENCE TO PRECEDENT 
 
 he is a useful judge or a poor one as he 
 estimates the measure accurately or loosely. He 
 must balance all his ingredients, his philosophy, 
 his logic, his analogies, his history, his customs, 
 his sense of right, and all the rest, and adding 
 a little here and taking out a little there, must 
 determine, as wisely as he can, which weight shall 
 tip the scales. If this seems a weak and incon- 
 clusive summary, I am not sure that the fault 
 is mine. I know he is a wise pharmacist who from! 
 a recipe so general can compound a fitting 
 remedy. But the like criticism may be made of 
 most attempts to formulate the principles which 
 regulate the practice of an art. W. Jethro Brown 
 reminds us in a recent paper on “Law and Evolu- 
 tion’’** that “Sir Joshua Reynolds’ book on 
 painting, offers little or no guidance to those who 
 wish to become famous painters. Books on 
 literary styles are notoriously lacking, speaking 
 as a rule, in practical utility.” After the weari- 
 some process of analysis has been finished, there 
 must be for every judge a new synthesis which 
 
 #429 Yale L. J. 394, 397: 
 162 
 
ADHERENCE TO PRECEDENT 
 
 he will have to make for himself. The most that 
 
 he can hope for is that with long thought and 
 | study, with years of practice at the bar or on the 
 bench, and with the aid of that inward grace 
 which comes now and again to the elect of any 
 - calling, the analysis may help a little to make 
 the synthesis a true one. | 
 
 In what I have said, I have thrown, perhaps 
 too much, into the background and: the-shadow 
 ‘the cases where the controversy turns not upon 
 the rule of law, but upon its application to the 
 facts. Those cases, after all, make up. the bulk 
 of the business of the courts. They are important 
 for the litigants concerned in them. They .call 
 for intelligence and patience and reasonable dis- 
 cernment on the part of the judges. who. must 
 decide them. But they leave jurisprudence where 
 it stood before. As applied. to. such..cases,..the 
 \judicial process, as was said at the outset.of these 
 lectures, is a process of search and comparison, 
 and little else. We have to distinguish between 
 the precedents which are merely static, and those 
 
 163 
 
ADHERENCE TO PRECEDENT 
 
 which are dynamic.** Because the former out- 
 number the latter many times, a sketch of the 
 judicial process which concerns itself almost 
 exclusively with the creative or dynamic ele- 
 ment, is likely to give a false impression, an 
 overcolored picture, of uncertainty in the law and 
 of free discretion in the judge. Of the cases that 
 come before the court in which I sit, a majority, 
 I think, could not, with semblance of reason, be 
 decided in any way but one. The law and _ its 
 application alike are plain. Such cases..are.pre- 
 destined, so.to speak, to.affirmance...without.. 
 opinion. In another and considerable percentage, _ 
 the rule of law is certain, andthe application 
 alone doubtful. A complicated record must be 
 dissected, the narratives of witnesses, more or 
 less_ incoherent and unintelligible, must be 
 analyzed, to determine whether a given situation 
 comes within one district or another upon. the 
 chart of rights and wrongs. The traveler who 
 knows that a railroad crosses his path must look 
 for approaching trains. That is at least the gen- 
 25 Cf. Salmond, “Jurisprudence,” p. 160. 
 
 164 
 
ADHERENCE TO PRECEDENT 
 eral rule. In numberless litigations the descrip- 
 tion of the landscape must be studied to see 
 whether vision has been obstructed, whether 
 something has been done or omitted to put the 
 
 traveler off his guard. Often these cases and 
 
 - others like them provoke difference of opinion 
 
 among judges. Jurisprudence remains untouched, 
 however, regardless of the outcome. Finally..there 
 remains a percentage, not large indeed, and yet 
 not so small as to be negligible, where a decision 
 one way or the other, will count for the. future, 
 will advance or retard, sometimes much,. some- 
 times little, the development: of the law. ‘These 
 are the cases where the creative element. in.the 
 judicial process finds its opportunity and-power. 
 
 It is with these cases that I have chiefly con- | 
 cerned myself in all that I have said to you. In 
 a sense it is true of many of them that they 
 might be decided either way. By that I mean that 
 
 reasons plausible and fairly persuasive might 
 
 _ be found for one conclusion as for another. Here 
 
 _ come into play that balancing of judgment, that 
 
 _ testing and sorting of considerations of analogy 
 
 Ss eS ee eee eer 
 
 165 
 
ADHERENCE TO PRECEDENT 
 and logic and utility and fairness, which I have 
 
 been trying to describe..Here.it.is.that.the judge 
 assumes the function of a lawgiver. T was much 
 troubled in spirit, in my first years upon ‘the 
 bench, to find how trackless ‘was the ocean on 
 which I had embarked. M sought for certainty. I 
 was oppressed and disheartened when I found 
 that the quest for it was futile. I was trying to 
 reach land, the solid land of fixed and settled 
 rules, the paradise of a justice that would de- 
 clare itself by tokens plainer and more command- 
 ing than its pale and glimmering reflectionsin my 
 own vacillating mind and conscience. I found 
 “with the voyagers in Browning’s ‘Paracelsus’ 
 that the real heaven was always beyond.’* As 
 the years have gone by, and as I have reflected 
 more and more upon the nature of the judicial 
 process, I have become reconciled to the un- 
 certainty, ‘because I have grown to see it as in- 
 evitable. I have grown to see that the process in 
 its highest reaches is not discovery, but creation; 
 
 26 G, Lowes Dickinson, “Religion and Tmmovality.* 
 p. 70°. 
 
 166 
 
Se ee 
 
 SUBCONSCIOUS FORCES 
 and that the doubts and misgivings, the hopes 
 
 and fears, are part of the travail of mind, the 
 pangs of death and the pangs of birth, in which 
 principles that have served their day expire, and 
 
 new principles are born. 
 
 I haye spoken of the forces of which judges“ 
 
 avowedly avail to shape the form and content of 
 their judgments. Even these forces are seldom 
 fully in consciousness. They lie so near the sur- 
 face, however, that their existence and influence 
 are not likely to be disclaimed. But the subject 
 is not exhausted with the recognition of their 
 power. Deep below consciousness are other 
 forces, the likes and the dislikes, the predilections 
 and the prejudices, the complex of instincts and 
 emotions and habits and convictions, which make 
 the man, whether he be litigant or judge./I wish ~ 
 I might have found the time and opportunity to 
 pursue this subject farther. I shall be able, as it 
 is, to do little more than remind you of its 
 
 existence.27 There has been a certain lack of 
 
 27 An interesting study of this subject will be found 
 in a book published since these lectures were written, 
 
 167 
 
SUBCONSCIOUS FORCES 
 candor in much of the discussion of the theme, 
 or rather perhaps in the refusal to discuss it, as _ 
 if judges must lose respect and confidence by the 
 reminder that they are subject to human limita- 
 tions. I do not doubt the grandeur of the concep- 
 tion which lifts them into the realm of pure rea- 
 son, above and beyond the sweep of perturbing 
 and deflecting forces. None the less, if there is 
 anything of reality in my analysis of the judicial 
 process, they do not stand aloof on these chill 
 and distant heights; and we shall not help the 
 cause of truth by acting and speaking as if they 
 do. The great tides and currents which engulf 
 the rest of men, do not turn aside in their course, 
 and pass the judges by. We like to figure to 
 ‘;ourselves the processes of justice as coldly ob- 
 jective and impersonal. The law, conceived of as 
 a real existence, dwelling apart and alone, speaks, 
 through the voices of priests and ministers, the 
 words which they have no choice except to utter. 
 
 That is an ideal of objective truth toward which 
 
 “The Foundations of Social Science,” by James Mickel 
 Williams, p. 209 et seq. 
 
 168 
 
SUBCONSCIOUS FORCES 
 
 every system of jurisprudence tends. It is an 
 ideal of which great publicists and judges have 
 spoken as of something possible to attain. "The 
 judges of the nation,” says Montesquieu, ‘‘are 
 only the mouths that_pronounce the words of 
 the law, inanimate beings, who can moderate 
 neither its force nor its rigor.”?® So Marshal, i in 
 Osborne v. Bank of the United States, 9g Wheat. 
 738, 866: The judicial department “has no will 
 
 in any case. . . . Judicial power is never exercised }. 
 
 for the purpose of giving effect to the will of the 
 judge; always for the purpose of giving effect to 
 the will of the legislature; or in other words, to 
 the will of the law.” It has a lofty sound; it is 
 well and finely said; but it can never be more 
 than partly true. Marshall’s own career is a 
 conspicuous illustration of the fact that the ideal 
 is beyond the reach of human faculties to attain. 
 He gave to the constitution of the United States 
 the impress of his own mind; and the form of 
 
 28 Montesquieu, “Esprit des Lois,” LIV, XI, chap. VI, 
 
 quoted by Ehrlich, “Die juristische Logik,” p. ror; 
 Gény, op. cit., p. 76; cf. Flavius, supra, p. 40. 
 
 169 
 
SUBCONSCIOUS FORCES 
 our constitutional law is what it is, because he 
 moulded it while it was still plastic and malle- 
 able in the fire of his own intense convictions. 
 At the opposite extreme are the words of the 
 French jurist, Saleilles, in his treatise “De la 
 Personnalité Juridique”:°° one wills at the be- 
 ginning the result; one finds the principle after; 
 wards; such is the genesis of all juridical con- 
 struction. Once accepted, the construction pre- 
 sents itself, doubtless, in the ensemble of legal 
 doctrine, under the opposite aspect. The factors 
 are inverted. The principle appears as an initial 
 cause, from which one has drawn the result 
 which is found deduced from it.” I would not 
 put the case thus broadly. So sweeping a state- 
 ment exaggerates the element of free volition. It 
 ignores the factors of determinism which cabin 
 and confine within narrow bounds the range 
 of unfettered choice. None the less, by its very 
 excess of emphasis, it supplies the needed cor-. 
 rective of an ideal of impossible objectivity. 
 Nearer to the truth, and midway between these 
 
 29 Pp. 45, 46. 
 170 
 
SUBCONSCIOUS FORCES 
 
 extremes, are the words of a man who was not a 
 jurist, but whose intuitions and perceptions were 
 deep and brilliant—the words of President 
 Roosevelt in his message of December 8, 1908, 
 to the Congress of the United States:*°° “The ~ 
 chief lawmakers in our country may be, and 
 often are, the judges, because they are .the final 
 seat of authority. Every time they interpret con- 
 tract, property, vested rights, due process of law, 
 liberty, they necessarily enact into law parts of 
 a system of social philosophy; and as.such in- 
 terpretation is fundamental, they give direction 
 to all law-making. The decisions of the courts on 
 economic and social questions depend upon their 
 economic and social philosophy; and for the 
 peaceful progress of our people during the 
 twentieth century we shall owe most to those 
 judges who hold to a twentieth century economic 
 and social philosophy and not to a long outgrown 
 philosophy, which was itself the product of 
 primitive economic conditions.” 
 
 I remember that this statement when made, 
 
 
 
 30 43 Congressional Record, part 1, p. 21. 
 
 171 
 
SUBCONSCIOUS FORCES 
 
 aroused a storm of criticism. It betrayed igno- 
 rance, they said, of the nature of the judicial 
 process. The business of the judge, they told us, 
 was to discover objective truth. His own little 
 individuality, his tiny stock of scattered and 
 unco-ordinated philosophies, these, with all his 
 weaknesses and unconscious prejudices, were to 
 be laid aside and forgotten. What did men care 
 for his reading of the eternal verities? It was 
 not worth recording. What the world was seek- 
 ing, was the eternal verities themselves. Far am 
 I from denying that this is, indeed, the goal 
 toward which all of us must strive. Something of 
 Pascal’s spirit of self-search and self-reproach 
 must come at moments to the man who finds 
 himself summoned to the duty of shaping the 
 progress of the law. The very breadth and scope 
 of the opportunity to give expression to his 
 finer self, seem to point the accusing finger of 
 disparagement and scorn. What am I that in 
 these great movements onward, this rush and 
 sweep of forces, my petty personality should de- 
 flect them by a hairbreadth? Why should the 
 
 172 
 
SUBCONSCIOUS FORCES 
 pure light of truth be broken up and impregnated 
 and colored with any element of my being? 
 Such doubts and hesitations besiege one now 
 and again. The truth is, however, that all these 
 inward questionings are born of the hope and 
 desire to transcend the limitations which hedge 
 our human nature. Roosevelt, who knew men, 
 had no illusions on this score. He was not positing 
 an ideal. He was not fixing a goal. He was 
 measuring the powers and the endurance of those 
 by whom the race was to be run. My duty as 
 judge may be to objectify in law, not my own 
 aspirations and convictions and philosophies, but 
 the aspirations and convictions and philosophies 
 of the men and women of my time. Hardly shall 
 I do this well if my own sympathies and beliefs 
 and passionate devotions are with a time that is 
 past. “‘We shall never be able to flatter ourselves, 
 in any system of judicial interpretat* 
 have eliminated altogether *’ 
 of the interpreter. In - 
 
 is no method or - 
 
 
 
 
 
 

 
 
 
 
 SUBCONSCIOUS FORCES 
 
 plants subjective reason.’*t We may figure the 
 task of the judge, if we please, as the task of a 
 translator, the reading of signs and symbols 
 given from without. None the less, we will not 
 set men to such a task, unless they have absorbed 
 the spirit, and have filled themselves with a love, 
 of the language they must read. 
 
 I have no quarrel, therefore, with the doctrine 
 that judges ought to be in sympathy with the 
 spirit of their times. Alas! assent to such a 
 generality does not carry us far upon the road 
 to truth. In every court there are likely to be 
 as many estimates of the “Zeitgeist” as there 
 are judges on its bench. Of the power of favor or 
 prejudice in any sordid or vulgar or evil sense, 
 I have found no trace, not even the faintest, 
 among the judges whom I have known. But every 
 day there is borne in on me a new conviction of 
 the inescapable relation between the truth with- 
 the truth within. The spirit of the age, 
 
 ach of us, is too often only 
 
 . 03, S6ClVESOs wor. dia 
 waa 
 
SUBCONSCIOUS FORCES 
 
 the spirit of the group in which the accidents of 
 birth or education or occupation or fellowship 
 have given us a place. No effort or revolution 
 of the mind will overthrow utterly and at all 
 times the empire of these subconscious loyalties. 
 “Our beliefs and opinions,” says James Harvey 
 Robinson,*? “like our standards of conduct come 
 
 to us insensibly as products of our companion- 
 
 ship with our fellow men, not as results of our | 
 
 personal experience and the inferences we in- 
 
 _ dividually make from our own observations. We» _ 
 
 are constantly misled by our extraordinary fac- 
 ulty of ‘rationalizing’—that is, of devising plausi- 
 
 ble arguments for accepting what is imposed upon 
 
 us by the traditions of the group to which we be-_ 
 
 long. Weareabjectly credulous by nature, and in- 
 stinctively accept the verdicts of the group. We 
 are suggestible not merely when 1 under the spell 
 of an excited mob or a fervent revival, but we are 
 ever and always listening to the still small voice 
 of the herd, and are ever ready to defend and 
 
 32 “The Still Smail Voice of the Herd,” 32 Political 
 Science Quarterly 315. 
 
 175 
 
SUBCONSCIOUS FORCES 
 
 justify its instructions and warnings, and accept 
 them as the mature results of our own reason- 
 ing.” This was written, not of judges specially, 
 but of men and women of all classes. The train- 
 ing of the judge, if coupled with what is styled 
 _ the judicial temperament, will help in some 
 _ degree to emancipate him from the suggestive 
 | power of individual dislikes and prepossessions. 
 It will help to broaden the group to. which his 
 subconscious loyalties are due. Never will. these 
 loyalties be. utterly...extinguished... while. human 
 nature is what. it-is. We may wonder sometimes. 
 how from the play of all these forces of individ- 
 ualism, there can come.anything. coherent, any- 
 thing but chaos and the void. Those are the 
 moments in which we exaggerate the elements of 
 difference. In the end there emerges something 
 which has a composite shape and truth and order. 
 It has been said that ‘‘History, like mathematics, 
 is obliged to assume that eccentricities more or 
 less balance each other, so that something re- 
 mains constant at last.”** The like is true of the 
 
 83 Henry Adams, “The Degradation of the Demo- | 
 cractic Dogma,” pp. 291, 292. 
 176 
 
SUBCONSCIOUS FORCES 
 
 work of courts. The eccentricities of judges 
 balance one another. ‘One judge looks at prob-; 
 lems from the point of view of history, another 
 from that of philosophy, another from that of 
 social utility, one is a formalist, another a 
 latitudinarian, one is timorous of change, an- 
 other dissatisfied with the present; out of the 
 attrition of diverse minds there is beaten some- 
 thing which has a constancy and uniformity and 
 average value greater than its component ele- 
 ments. The same thing is true of the work of 
 juries. I do not mean to suggest that the product 
 in either case does not betray the flaws inherent 
 in its origin. The flaws are there as in every 
 human institution. Because they are not only 
 there but visible, we have faith that they will 
 be corrected. There is no assurance that the 
 rule of the majority will be the expression of 
 perfect reason when embodied in constitution or 
 in statute. We ought not to expect more of it 
 when embodied in the judgments of the courts. 
 The tide rises and falls, but the sands of error 
 
 crumble. 
 
 177 
 
 9 
 
CONCLUSION 
 
 The work of a judge is in one sense enduring 
 and in another sense ephemeral. What is good 
 in it endures. What is erroneous is pretty sure 
 to perish. The good remains the foundation on 
 which new structures will be built. The bad will 
 be rejected and cast off in the laboratory of the 
 years. Little by little the old doctrine is under- 
 mined. Often the encroachments are so gradual 
 that their significance is at first obscured. Finally 
 we discover that the contour of the landscape has 
 been changed, that the old maps must be cast 
 aside, and the ground charted anew. The process, 
 with all its silent yet inevitable power, has been 
 described by Mr. Henderson with singular 
 felicity:** ‘““When an adherent of a systematic 
 faith is brought continuously in touch with in- 
 fluences and exposed to desires inconsistent with 
 that faith, a process of unconscious cerebration 
 may take place, by which a growing store of 
 
 hostile mental inclinations may accumulate, 
 
 84“Foreign Corporations in American Constitutional 
 Law,” p. 164; cf. Powell, “The Changing Law of 
 Foreign Corporations,’ 33 Pol. Science Quarterly, p. 
 569. 
 
 178 
 
CONCLUSION 
 
 strongly motivating action and decision, but 
 seldom emerging clearly into consciousness. In 
 the meantime the formulas of the old faith are 
 retained and repeated by force of habit, until 
 one day the realization comes that conduct and 
 sympathies and fundamental desires have be- 
 ‘come so inconsistent with the logical framework 
 that it must be discarded. Then begins the task 
 of building up and rationalizing a new faith.” 
 
 Ever in the making, as law develops through 
 the centuries, is this new faith which silently 
 and steadily effaces our mistakes and eccen- 
 tricities. I sometimes think that we worry our- 
 selves overmuch about the enduring consequences, 
 of our errors. They may work a little confusion 
 for a time.’In the end, they will be modified or 
 corrected or their teachings ignored. The future 
 takes care of such things. In the endless process 
 of testing and retesting, there is a constant re- 
 jection of the dross, and a constant retention of 
 whatever is pure and sound and fine. 
 
 The future, gentlemen, is yours. We have been 
 
 called to do our parts in an ageless process. Long 
 
 179 
 
CONCLUSION 
 
 after I am dead and gone, and my little part in 
 it is forgotten, you will be here to do your share, 
 and to carry the torch forward. I know that the 
 flame ill burn pont ee 
 
 eels 
 
 your keeping. 
 
 180 
 
Ur tt ee RL ARS BO 
 Oy ie ae ee ea 
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