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of an unanimous or decisive last word on pos as any. We slıall find, I think, that in religious session or ownership or divers other funda- and philosophical debate, each advocate conmental topics.
cerns himself to justify the system of his choice “One might produce further examples to according to these tests quite as much as to show the danger of being in haste to abandon establish its truth of superiority by demonstraour own methods, and the still greater dangers tive proof. If I may use the highest example withthat arise from well meant attempts to improve out offense, modern theology, so far as it is apolothem by mixing them with others. Thus our getic and not purely critical, pays much more native common law procedure is in essence con
attention to the general standing of Christianity tentious; it is a combat between parties in in relation to modern ethics and civilization which the court is only umpire. Our equity than to discussing the testimony of the apostles procedure, a sufficiently acclimatized exotic, but and evangelists as if it was a series of findings still an exotic, is in essence officious; it repre- by a special jury. The plain man asks not sents (though one cannot say that in modern what you can prove about yourself, but what times it has actually been) an active inquiry by you have done and can do; and the philosopher the court, aimed at extracting the truth of the may perhaps find more reason in this method matter in the court's own way. No one has than the plain man himself knows. Applying put this contrast on record more clearly or
it to the case in hand, we see that the common forcibly than Mr. Langdell.
law has had considerable opportunities and “ Twenty years ago the authors of our judi- trials both in the east and in the west in pres
ence of other systems. cature acts in England, men of the highest
“ In British India the general principles of eminence, but trained exclusively in the chan
our law, by a process which we may summarily cery system, whet about to engraft considerable parts of that system on the practice of the describe as judicial application confirmed and
extended by legislation, have in the course of courts of common law. What came of their
this century, but much more rapidly within the good intentions ? Instead of the simplicity and substantial equity which they looked for, the last generation, covered the whole field of
criminal law, civil wrongs, contract, evidence, new birth of justice was found to be perplexed procedure in the higher, if not in the lower, practice, vexatious interlocutory proceedings and multiplication of appeals and costs, so that courts, and a good deal of the law of property.
Family relations and inheritance are the refor several years the latter state of the suitor
maining stronghold of the native systems of was worse ihan the former.
personal law, which are fortisied by their inti“Repeated revision of the rules of court and
mate connection with religious or semi-religious some fresh legislation was needed before the
custom. It is not much to say that a modified reconstructed machine would work smoothly. English law is thus becoming the general law But I may not pursue these matters here, and of British India, for if the French, instead of can only guess that perhaps that American ourselves, had conquered India the same thing parallels might be found.
must have happened, only that the 'justice, .“ I think that I have shown that the common equity and good conscience' by which Eurolaw has a right to its individuality, and if we
pean judges had to guide themselves in default now turn to facts observable on this continent of any other applicable rule would have been and elsewhere in order to see how that right Gallican, and not Anglican. maintains itself in practice, I do not think that
But it is something to say that the common we can fairly be accused of taking refuge in law has proved equal to its task. The Indian empiricism.
Penal Code, which is English criminal law sim“The vitality of any coherent scheme of rules plified and set in order, has worked for more or doctrine may be tested in various ways. than a generation among people of every deAmong other tests, the power of holding or gree of civilization, with but little occasion for gaining ground in competition with rivals, and amendment. In matters of business and comthe faculty of assimilating new matter without merce English law has not only established being overwhelmed by it, are perhaps as good l itself, but has been ratified by deliberate legis
lation, subject to the reform of some few anom. | law that accompanied and followed this proalies which we might well have reformed at Anglicised law merchant has become to home ere now, and to the abrogation of some a certain extent insular, but if we must admit few rules that had ceased to be of much impor- so much of its disadvantage, I believe it is on tance at home, and were deemed unsuitable for the other hand wider, richer and more flexIndian conditions.
ible system than is to be found on the commer“More than this, principles of equitable ju- | cial codes of France and her imitators, who risprudence, which we seldom have occasion to have stereotyped mercantile usage and business remember in modern English practice have habits as they existed in the 17th century. We been successfully revived in Indian jurisdictions have indeed preserved antiquated forms, but within our own time for the discomfiture of
we preserve them because every clause and aloppressive and fraudulent money-lenders. The most every word carries a meaning settled by details of procedure, both civil and criminal,
modern decision. have undergone much revision and transforma
“A policy of marine insurance is to our curtion in British India, as in most other civilized
rent maritime law somewhat as a text of the countries and States; and there is doubtless much to be said of both success and failure in praetor's edict to a title of digest built upon it.
And this does not prevent further developthis department. But since neither the praise nor the blame that may be due to modern codes
“The courts cannot contradict what has alof procedure can be said to touch the common
ready been settled as law, but the power of law, save in a very remote way, they do not
taking up fresh material is still alive, as we have concern us here. “There is another example in which you
been assured by high authority in England may take a neighborly interest, that of the prov
within the present generation. ince of Quebec. You are aware that the in
Can we rest here in contemplating the past habitants of lower Canada live in the guaranteed work and present activity of the common law ? enjoyment of a law whose base is not English,
“We cannot forbear, I think, to look to the but French, and that their Civil Code, enacted future and consider what security we have for not quite a generation ago, is avowedly modelled the maintenance of this vital unity. on the code of Napoleon. Nevertheless the “ Ten years ago the Supreme Court of the common law (which, of course, prevails in the United States declared, in a judgment of admiraother provinces of the Dominion), has set its ble clearness and good sense, which I trust will mark to some extent on the substance of legal | be followed in England when the occasion justice in French Canada, and to a considerable comes, that in matters of general commercial extent on procedure.
principle "a diversity in the law as administered “We find in the Civil Procedure of lower
on the two sides of the Atlantic is greatly to be Canada, as we should expect, the decisory oath deprecated.' Shall this remain for all time a of the defendant, and other features of plead- mere deprecation, appealing forcibly, no doubt, ing and process common to all modern systems
to the best sense of our highest tribunals, but derived from Roman law, but we also find that still subject to buman accidents? Is there not in a large proportion of causes, either party can
any way beside and beyond the discussion of demand a trial by jury. This may be said to lawyers in books and otherwise, of assisting our show the common law competing against a
ultimate authorities to agree? Would not the powerful rival under the greatest possible dis- best and surest way be, that in matters of great advantage, or rather making itself felt in spite weight and general importance to the common of being excluded from formal competition.
law, they should assist one another ? Certainly Perhaps the assimilation of new matter is a
there are difficulties in the way of any such yet stricter test of vital power than tenacity on process, but is there, in truth, any insuperable old ground or prevalence over enfeebled rivals. difficulty ? In this case the great example is the incorpora “ The House of Lords, as we know, is entition of the law merchant with the common law, tled to consult the judges of the land, though and the immense development of commercial | not bound either to consult them in any par
ticular case, or, when they are consulted, to de- legal mind, not of this or that portion of the cide according to their opinion or that of the domains that acknowledge the common law, majority. There is nothing I know of in our but of the whole. There is no reason why we Constitution to prevent the House of Lords, if should not live in hope of our system of judiit should think fit, from desiring the judges of cial law being confirmed and exalted in a judgthe Supreme Court of the United States, by ment seat more than national, in a tribunal some indirect process, if not directly, and as a more comprehensive, more authoritative and matter of personal favor, to communicate their
more august than any the world has yet known. collective or individual opinions on any ques “Some one may ask whether we look to see tion of general law. Nor, I should apprehend, these things ourselves or hope for them in our can there be anything in the constitution of that children's time. I cannot tell. The movemost honorable court or the office of its judges ment of ideas will not be measured beforehand to prevent thom from acceding to such a re
in days or years. quest if it could be done without prejudice to
“Our children and grandchildren may have their regular duties. “ It would be still easier for the privy council, when we are least hopeful. Dreams are not
to abide its coming, or it may come suddenly a body whose ancient powers have never grown
versed in issuable matter and have no dates. old, and whose functions have never ceased to be expansive and elastic, to seek the like assist-Only I feel that this one looks forward, and
will be seen as waking light some day. If any And if the thing could be done at all, I suppose it could be done reciprocally from this one, being of little faith or over-curious, must side, with no greater trouble. Such a proceed
needs ask in what day, I can answer only in
the same fashion. ing could not, in any event, be common. It
We may know the signs, might happen twice or thrice in a generation, in though we know not when they will come. a great and dubious case touching fundamental
These things will be when we look back on our
dissensions in the past as brethren grown up to principles, like that of Dalton v. Angus — a case in which some strong American opinions, if man's estate, and, dwelling in unity, look back they could have been obtained, would have upon the bickerings of the nursery and the been specially valuable and instructive.
jealousies of the classroom ; when there is no “Could the precedent be made once or twice
use for the word “foreigner” between Cape in an informal and semi-official manner, it
Wrath and the Rio Grande, and the federated might safely be left to posterity to devise the navies of the English-speaking nations keep the
peace means of turning a laudable occasional usage
of the ocean under the Northern lights
and under the Southern Cross from Vancouver into custom clothed with adequate form. As for the difficulties, they are of the kind that
to Sidney and from the channel to the Gulf of can be made to look formidable by persons un
Mexico ; when an indestructable union of even willing to move, and can be made to vanish by wider grasp and higher potency than the fedeactive good will. Objections on the score of ral bond of these States has knit our descenddistance and delay would be inconsiderable, ants into an invincible and indestructible connot to say frivolous. From Westminster to
cord. Washington is for our mails and dispatches “For that day is coming, too, and every one hardly so much of a journey as it was a century of us diin do something, more or less, to hasten agr from Westminster to an English judge on it; of us, I say, not only as citizens, but as the northern or western circuit.
especially bound thereto by the history and “Opinions from every supreme appellate traditions of our profession, which belong to court in every English-speaking jurisdiction America no less than to England. If we may might now be collected within the time that deem that the fathers and founders of our Lord Eldon commonly devoted to the pre- polity can still take heed of our desires and liminary consideration of an appeal from the endeavors, if we may think of them as still with master of the rolls. It this day there is no
us in spirit, watching over us, and peradvenmechanical obstacle in the way of judgments ture helping us, then surely we may not doubt being rendered which should represent the best that in this work Alfred and Edward and
Chatham are well pleased to be at one with case may be, in an office, devoting his last year Washington and Hamilton and Lincoln. Un before going up for examination to study at the der the auspices of such a fellowship, we, their school under a corps of instructors, and must distant followers are called ; in their names prove a convenient arrangement for students we go forward ; it is their destiny that we shall so situated. It is stated that the year's work fulll, their glory that we shall accomplish. will be fully up to the standard of quantity and
“ This, and nothing less than this, I claim quality required at any school in the country. here, an Englishman among Americans, a grateful guest, but no stranger, for the full and
The full bench of the Supreme Judicial Court
of Massachusetts has handed down a decision perfect vocation of our common law.”
of interest to savings banks in the case of Ma
loney v. Casey and the Haverhill Savings Bank, We note with much interest the reorgani- | trustee. The case was an action of contract zation of the board of trustees and faculty against Casey, in which judgment was rendered of the Albany Law School, coupled with the in favor of the plaintiff against him, and the announcement that it is proposed by the school bank was adjudged trustee. It appeared that to make a specialty of preparation of students the bank book given Casey had been lost, and for the bar during the course, extending over an application was made on behalf of the bank one year, keeping in view the requirements for to the Superior Court that an order of judgadmission by the examiners appointed under ment should not be entered against the trustee the statute of 1894. The reorganization places without the production of the book, or until at the head of the board of trustees llon. the plaintiff filed a bond conditioned to hold Amasa J. Parker, whose father was one of the the bank harmless. The Superior Court refounders of and for more than twenty years a
fused to grant this request, and the Supreme lecturer in the school. The newly-elected Court affirms its decision. Among other things dean, J. Newton Fiero, is known to the profession as a lawyer and legal author, and by tend that credits in savings banks shall be sub
The statutes on trustee process plainly inreason of his interest in matters pertaining to
ject to attachments by that process. law reform, rather than as a teacher or lecturer.
It is for the Legislature to say on what terms He has, however, been a member of the fac- trustee process shall be maintained to reach the ulty during the past four years, making a spe- credits of the principal defendant, and the rules cialty of Procedure. He will under the new of the bank are not regarded as essential conarrangement also take the subjects of Equity ditions, on a compliance with which the inand Torts. James W. Eaton, recently distric: debtedness of the bank to the depositor necesattorney of Albany county, and the editor of sarily depends. the last edition of Reeve on Domestic Rela
“We are of opinion that the statutes do not tions, is expected to devote all the time and at- make the liability of the bank to be charged as
trustec depend upon the plaintiff's complying tention that can be spared from his practice to
with the rules of the bank, which were intended the work of the school. The announcement of to regulate the conduct of the depositor in his the school states that Chief Judge Andrews, relations with the bank.” Justices Landon, Learned, Parker and Herrick, of the Supreme Court, and others, including The Pennsylvania State Bar Association, Professor Collin, formerly of Cornell Law which was organized during the past winter, School, will give occasional lectures on special will hold its first meeting at Bedford Springs topics. There seems to be abundant opportu
on the gth and 10th of July. More than four nity for work of the character laid out for the hundred members of the Pennsylvania Bar have school in the prospectus. Since a very large pected to be an interesting one.
joined the association, and the meeting is ex
Mr. J. Newnumber of students are unable to spare the
ton Fiero, of Albany, will deliver an address time or money necessary for a course of two or
before the association upon “The Work of Bar three
years, such as is given at most of the law Associations,” and will respond to the toast of schools, this course is so arranged as to enable the “American Bar Association " at the annual the student to spend one or two years, as the l banquet on the evening of the 10th.
THE APPELLATE DIVISION, OR DIVISIONS, “The presiding justice thereof” seems to mean of OF THE SUPREME COURT.
the department, and not of the Division; for “the
presiding justice or the department" occurs twice, 'S there more than one Appellate Division of the later, in the same section. Supreme Court under the Constitution of 1895?
3. “A majority of the justices designated to sit in The question is one of at least theoretic interest;
the Appellate Division in each department shall be it may be that practical and important results de
residents of the department.” Besides, a construcpend on the answer.
tion which would make this imply the existence of The primary inquiry is, whether the new Consti
an Ippellate Division in each department, is one tution creates more than one appellate Division, or
which woull make it require a majority of the jusif not, whether it gives authority for such creation. tices (constituting the one Appellate Division) who If peither, then legislation creating, or attempting shall be assigned to sit in any one department to be to create, more than one Appellate Division, would residents of the department. be subject to an inherent weakness--tending in the 1. · The justices of the Appellate Division in direction of unconstitutionality.
cach department shall have power to fix the times First, then, as to the provisions of the Constitu- and places for holding special and trial terms." This tion (art. 6):
might either (1) refer to an Appellate Division in “The Supreme Court is continued."
cach department, or (2) be a direction to the justices We have, then, under the new regime (a) no new in (i. e., assigned to) each department. The latter court, and (b) only one court.
construction is favored by a portion of the same This is a merely preliminary reflection. The sentence, where the power is given “to assign the clauses of the sixth article of the Constitution on
justices in the departments" to hold terms. the precise question now mooted, may be arranged 5. “ The justices of the Appellate Division in in three classes, viz., those (1) indicative of one Ap-cach department shall have power to appoint and pellate Division; (II) indicative of more than one,
a clerk." ($ 19.)
Possible meanings: i. e., four, Appellate Divisions; and (III) ambigu. Either (1) an Appellate Division in cach depart
ment, or (2) the Appellate Division justices (sitting) I. AMBIGUOUS.
in each department shall have power, etc. 1. The very first reference to the new judicial | 11. INDICATIVE OF Only ONE APPELLITE Division. phenomenon is ambiguous. It is said: “ There shall
1. The governor may
make temporary designabe an Appellate Division of the Supreme Court."
tions in case of the absence or inability to act of So far is plain sailing; but when it is added “ Consisting of seven justices in the first department and
any justice in the Appellute Dirision." (§ 6.)
2. of five justices in each of the other departments," | ercise any of the powers of a justice of the Supreme
No justice of the Appellate Division shall exthe reader is left to choose between these compet- | Court other than those
pertaining to the ing constructions: (11) There shall be an Appellate
Ippellate Division,” etc. Division of the Supreme Court in each of the four departments, consisting in the first of seven jus- diction now exercised by the Supreme Court at its
3. “ The Appellate Division shall have the juristices, and in each of the others of five; (b) There
General Tirms. shall be an Appellate Division of the Supreme Court,
4. “No judge or justice shall sit in the Appellate consisting of twenty-two justices, seven to be as
in review of a decision macle by signed to the first department and five to each of
bim," etc. the others,
5. No unanimous decision of the Ippellate Divi2. It is next provided that from all the justices xion of the Supreme Court that there is evidence clected to the Supreme Court the governor shall
shall be reviewed by the Court of Apdesignate those who shall constitute the Appellate Division in each department, and he shall designate only from judgments or orders entered upon decis
Appeals may be taken as of right, the presiding justice thereof." This does not nee
ions of the lppellute Division of the Supreme Court." essarily mean that there is to be an Appellate Divi
6. The clerks of the lp'pellate Division shall resion in each department. It might be construed to
ceive compensation to be established by law, etc. direct the governor to designate, from the entire Supreme bench, those who should constitute the 1s 19.) Appellate Division of the court, and to name, in the III. INDICATIVE OF Four APPELLATE Divisions, case of each appointee, the department in which he 1. “Whenever the Appellate Division in any ilewas to sit; or “the Appellate Division in each de-partment shall be unable to dispose of its business partment "inight be taken to indicate four Appels within a reasonable time, a majority of the presiding late Divisions.
justices of the several departments" may transfer