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of an unanimous or decisive last word on possession or ownership or divers other fundamental topics.

"One might produce further examples to show the danger of being in haste to abandon our own methods, and the still greater dangers that arise from well meant attempts to improve them by mixing them with others. Thus our native common law procedure is in essence contentious; it is a combat between parties in which the court is only umpire. Our equity procedure, a sufficiently acclimatized exotic, but still an exotic, is in essence officious; it represents (though one cannot say that in modern times it has actually been) an active inquiry by the court, aimed at extracting the truth of the matter in the court's own way. No one has put this contrast on record more clearly or forcibly than Mr. Langdell.

"Twenty years ago the authors of our judicature acts in England, men of the highest eminence, but trained exclusively in the chancery system, whet about to engraft considerable parts of that system on the practice of the

courts of common law. What came of their good intentions? Instead of the simplicity and substantial equity which they looked for, the new birth of justice was found to be perplexed practice, vexatious interlocutory proceedings and multiplication of appeals and costs, so that for several years the latter state of the suitor

was worse than the former.

"Repeated revision of the rules of court and some fresh legislation was needed before the reconstructed machine would work smoothly. But I may not pursue these matters here, and can only guess that perhaps that American parallels might be found.

“I think that I have shown that the common law has a right to its individuality, and if we now turn to facts observable on this continent and elsewhere in order to see how that right maintains itself in practice, I do not think that we can fairly be accused of taking refuge in empiricism.

"The vitality of any coherent scheme of rules or doctrine may be tested in various ways Among other tests, the power of holding or gaining ground in competition with rivals, and the faculty of assimilating new matter without being overwhelmed by it, are perhaps as good

as any. We shall find, I think, that in religious and philosophical debate, each advocate concerns himself to justify the system of his choice according to these tests quite as much as to establish its truth of superiority by demonstrative proof. If I may use the highest example without offense, modern theology, so far as it is apologetic and not purely critical, pays much more attention to the general standing of Christianity in relation to modern ethics and civilization than to discussing the testimony of the apostles and evangelists as if it was a series of findings by a special jury. The plain man asks not what you can prove about yourself, but what you have done and can do; and the philosopher may perhaps find more reason in this method than the plain man himself knows. Applying it to the case in hand, we see that the common law has had considerable opportunities and trials both in the east and in the west in pres

ence of other systems.

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In British India the general principles of our law, by a process which we may summarily describe as judicial application confirmed and extended by legislation, have in the course of this century, but much more rapidly within the criminal law, civil wrongs, contract, evidence, last generation, covered the whole field of procedure in the higher, if not in the lower, courts, and a good deal of the law of property. Family relations and inheritance are the remaining stronghold of the native systems of personal law, which are fortified by their intimate connection with religious or semi-religious custom. It is not much to say that a modified

English law is thus becoming the general law of British India, for if the French, instead of ourselves, had conquered India the same thing must have happened, only that the 'justice, equity and good conscience' by which European judges had to guide themselves in default of any other applicable rule would have been Gallican, and not Anglican.

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alies which we might well have reformed at home ere now, and to the abrogation of some few rules that had ceased to be of much importance at home, and were deemed unsuitable for Indian conditions.

lation, subject to the reform of some few anom- law that accompanied and followed this process. Anglicised law merchant has become to a certain extent insular, but if we must admit so much of its disadvantage, I believe it is on the other hand a wider, richer and more flexible system than is to be found on the commercial codes of France and her imitators, who have stereotyped mercantile usage and business habits as they existed in the 17th century. We have indeed preserved antiquated forms, but we preserve them because every clause and almost every word carries a meaning settled by modern decision.

"More than this, principles of equitable jurisprudence, which we seldom have occasion to remember in modern English practice have been successfully revived in Indian jurisdictions within our own time for the discomfiture of oppressive and fraudulent money-lenders. The details of procedure, both civil and criminal, have undergone much revision and transformation in British India, as in most other civilized countries and States; and there is doubtless

much to be said of both success and failure in this department. But since neither the praise nor the blame that may be due to modern codes of procedure can be said to touch the common law, save in a very remote way, they do not concern us here.

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There is another example in which you may take a neighborly interest, that of the province of Quebec. You are aware that the inhabitants of lower Canada live in the guaranteed enjoyment of a law whose base is not English, but French, and that their Civil Code, enacted not quite a generation ago, is avowedly modelled on the code of Napoleon. Nevertheless the common law (which, of course, prevails in the other provinces of the Dominion), has set its mark to some extent on the substance of legal justice in French Canada, and to a considerable extent on procedure.

"We find in the Civil Procedure of lower Canada, as we should expect, the decisory oath of the defendant, and other features of pleading and process common to all modern systems derived from Roman law, but we also find that in a large proportion of causes, either party can demand a trial by jury. This may be said to show the common law competing against a powerful rival under the greatest possible disadvantage, or rather making itself felt in spite of being excluded from formal competition.

66

Perhaps the assimilation of new matter is a yet stricter test of vital power than tenacity on old ground or prevalence over enfeebled rivals. In this case the great example is the incorporation of the law merchant with the common law, and the immense development of commercial

"A policy of marine insurance is to our current maritime law somewhat as a text of the

praetor's edict to a title of digest built upon it. And this does not prevent further develop

ment.

(6 The courts cannot contradict what has already been settled as law, but the power of taking up fresh material is still alive, as we have been assured by high authority in England within the present generation.

"Can we rest here in contemplating the past work and present activity of the common law?

"We cannot forbear, I think, to look to the future and consider what security we have for the maintenance of this vital unity.

"Ten years ago the Supreme Court of the United States declared, in a judgment of admirable clearness and good sense, which I trust will be followed in England when the occasion comes, that in matters of general commercial principle a diversity in the law as administered on the two sides of the Atlantic is greatly to be deprecated.' Shall this remain for all time a mere deprecation, appealing forcibly, no doubt, to the best sense of our highest tribunals, but still subject to human accidents? Is there not any way beside and beyond the discussion of lawyers in books and otherwise, of assisting our ultimate authorities to agree? Would not the best and surest way be, that in matters of great weight and general importance to the common law, they should assist one another? Certainly there are difficulties in the way of any such process, but is there, in truth, any insuperable difficulty?

"The House of Lords, as we know, is entitled to consult the judges of the land, though not bound either to consult them in any par

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legal mind, not of this or that portion of the domains that acknowledge the common law, but of the whole. There is no reason why we should not live in hope of our system of judicial law being confirmed and exalted in a judgment seat more than national, in a tribunal more comprehensive, more authoritative and more august than any the world has yet known.

ticular case, or, when they are consulted, to de-
cide according to their opinion or that of the
majority. There is nothing I know of in our
Constitution to prevent the House of Lords, if
it should think fit, from desiring the judges of
the Supreme Court of the United States, by
some indirect process, if not directly, and as a
matter of personal favor, to communicate their
collective or individual opinions on any ques-
tion of general law. Nor, I should apprehend,
can there be anything in the constitution of that
most honorable court or the office of its judges
to prevent them from acceding to such a re-in days or years.
quest if it could be done without prejudice to
their regular duties.

"It would be still easier for the privy council,
a body whose ancient powers have never grown
old, and whose functions have never ceased to

ance.

It

be expansive and elastic, to seek the like assist-
And if the thing could be done at all, I
suppose it could be done reciprocally from this
side, with no greater trouble. Such a proceed-
ing could not, in any event, be common.
might happen twice or thrice in a generation, in
a great and dubious case touching fundamental
principles, like that of Dalton v. Angus a case
in which some strong American opinions, if
they could have been obtained, would have
been specially valuable and instructive.

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'Could the precedent be made once or twice in an informal and semi-official manner, might safely be left to posterity to devise the means of turning a laudable occasional usage into custom clothed with adequate form. As for the difficulties, they are of the kind that can be made to look formidable by persons unwilling to move, and can be made to vanish by active good will. Objections on the score of distance and delay would be inconsiderable, not to say frivolous. From Westminster to Washington is for our mails and dispatches hardly so much of a journey as it was a century age from Westminster to an English judge on the northern or western circuit.

"Opinions from every supreme appellate court in every English-speaking jurisdiction might now be collected within the time that Lord Eldon commonly devoted to the preliminary consideration of an appeal from the master of the rolls. At this day there is no mechanical obstacle in the way of judgments being rendered which should represent the best

"Some one may ask whether we look to see these things ourselves or hope for them in our children's time. I cannot tell. The movement of ideas will not be measured beforehand

"Our children and grandchildren may have when we are least hopeful. Dreams are not to abide its coming, or it may come suddenly versed in issuable matter and have no dates. Only I feel that this one looks forward, and will be seen as waking light some day. If any one, being of little faith or over-curious, must needs ask in what day, I can answer only in the same fashion. We may know the signs, though we know not when they will come. These things will be when we look back on our dissensions in the past as brethren grown up to man's estate, and, dwelling in unity, look back upon the bickerings of the nursery and the jealousies of the classroom; when there is no use for the word "foreigner" between Cape Wrath and the Rio Grande, and the federated navies of the English-speaking nations keep the peace of the ocean under the Northern lights and under the Southern Cross from Vancouver

to Sidney and from the channel to the Gulf of
Mexico; when an indestructable union of even
wider
grasp and higher potency than the fede-
ral bond of these States has knit our descend-
ants into an invincible and indestructible con-

cord.

"For that day is coming, too, and every one of us can do something, more or less, to hasten it; of us, I say, not only as citizens, but as especially bound thereto by the history and traditions of our profession, which belong to America no less than to England. If we may deem that the fathers and founders of our polity can still take heed of our desires and endeavors, if we may think of them as still with us in spirit, watching over us, and peradventure helping us, then surely we may not doubt that in this work Alfred and Edward and

Chatham are well pleased to be at one with Washington and Hamilton and Lincoln. Under the auspices of such a fellowship, we, their distant followers are called; in their names we go forward; it is their destiny that we shall fulfil, their glory that we shall accomplish.

"This, and nothing less than this, I claim here, an Englishman among Americans, a grateful guest, but no stranger, for the full and perfect vocation of our common law."

case may be, in an office, devoting his last year before going up for examination to study at the school under a corps of instructors, and must prove a convenient arrangement for students so situated. It is stated that the year's work will be fully up to the standard of quantity and quality required at any school in the country.

The full bench of the Supreme Judicial Court of Massachusetts has handed down a decision of interest to savings banks in the case of Maloney 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 Hon. 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 Court affirms its decision. Among other things lecturer in the school. The newly-elected it dean, J. Newton Fiero, is known to the prosays: fession as a lawyer and legal author, and by reason of his interest in matters pertaining to law reform, rather than as a teacher or lecturer. He has, however, been a member of the faculty during the past four years, making a specialty of Procedure. He will under the new arrangement also take the subjects of Equity and Torts. James W. Eaton, recently district attorney of Albany county, and the editor of the last edition of Reeve on Domestic Rela

tions, is expected to devote all the time and attention that can be spared from his practice to the work of the school. The announcement of the school states that Chief Judge Andrews, Justices Landon, Learned, Parker and Herrick, of the Supreme Court, and others, including Professor Collin, formerly of Cornell Law School, will give occasional lectures on special topics. There seems to be abundant opportunity for work of the character laid out for the school in the prospectus. Since a very large number of students are unable to spare the time or money necessary for a course of two or three years, such as is given at most of the law schools, this course is so arranged as to enable the student to spend one or two years, as the

* * *

"The statutes on trustee process plainly intend that credits in savings banks shall be subject to attachments by that process. It is for the Legislature to say on what terms trustee process shall be maintained to reach the credits of the principal defendant, and the rules of the bank are not regarded as essential conditions, on a compliance with which the indebtedness of the bank to the depositor necessarily depends.

"We are of opinion that the statutes do not make the liability of the bank to be charged as trustee depend upon the plaintiff's complying with the rules of the bank, which were intended to regulate the conduct of the depositor in his relations with the bank."

The Pennsylvania State Bar Association, which was organized during the past winter, will hold its first meeting at Bedford Springs on the 9th and 10th of July. More than four hundred members of the Pennsylvania Bar have joined the association, and the meeting is expected to be an interesting one. Mr. J. Newton Fiero, of Albany, will deliver an address before the association upon The Work of Bar Associations," and will respond to the toast of the "American Bar Association" at the annual banquet on the evening of the 10th.

66

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THE APPELLATE DIVISION, OR DIVISIONS.
OF THE SUPREME COURT.

IS

S there more than one Appellate Division of the Supreme Court under the Constitution of 1895? The question is one of at least theoretic interest; it may be that practical and important results depend on the answer.

The primary inquiry is, whether the new Constitution creates more than one Appellate Division, or if not, whether it gives authority for such creation. If neither, then legislation creating, or attempting to create, more than one Appellate Division, would be subject to an inherent weakness-tending in the direction of unconstitutionality.

66 'The presiding justice thereof" seems to mean of the department, and not of the Division; for "the presiding justice of the department" occurs twice, later, in the same section.

3. "A majority of the justices designated to sit in the Appellate Division in each department shall be residents of the department." Besides, a construction which would make this imply the existence of an Appellate Division in each department, is one which would make it require a majority of the justices (constituting the one Appellate Division) who shall be assigned to sit in any one department to be residents of the department.

4. The justices of the Appellate Division in 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):

"The Supreme Court is continued.”

We have, then, under the new regime (a) no new court, and (b) only one court.

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might either (1) refer to an Appellate Division in cach department, or (2) be a direction to the justices in (i. e., assigned to) each department. The latter construction is favored by a portion of the same sentence, where the power is given "to assign the justices in the departments" to hold terms.

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The justices of the Appellate Division in each department shall have power to appoint and remove a clerk." (§ 19.) Possible meanings: Either (1) an Appellate Division in each department, or (2) the Appellate Division justices (sitting) in each department shall have power, etc.

1. The governor may make temporary designations in case of the absence or inability to act of any justice in the Appellate Division." (§ 6.)

ercise any of the powers of a justice of the Supreme 2. "No justice of the Appellate Division shall exCourt other than those * * * pertaining to the Appellate Division," etc.

1. The very first reference to the new judicial II. INDICATIVE OF ONLY ONE APPELLATE DIVISION. phenomenon is ambiguous. It is said: There shall be an Appellate Division of the Supreme Court." So far is plain sailing; but when it is added "Consisting of seven justices in the first department and of five justices in each of the other departments," the reader is left to choose between these competing constructions: (a) There shall be an Appellate Division of the Supreme Court in each of the four departments, consisting in the first of seven justices, and in each of the others of five; (b) There shall be an Appellate Division of the Supreme Court, consisting of twenty-two justices, seven to be assigned to the first department and five to each of the others.

3. "The Appellate Division shall have the jurisdiction now exercised by the Supreme Court at its

General Terms.

4. "No judge or justice shall sit in the Appellate Division * * * in review of a decision made by him," etc.

* * *

5. No unanimous decision of the Appellate Division of the Supreme Court that there is evidence * * * shall be reviewed by the Court of Appeals." Appeals may be taken as of right, only from judgments or orders entered upon decisions of the Appellate Division of the Supreme Court." 6. The clerks of the Appellate Division shall receive compensation to be established by law, etc. (§ 19.)

2. It is next provided that "from all the justices elected to the Supreme Court the governor shall designate those who shall constitute the Appellate Division in each department, and he shall designate the presiding justice thereof." This does not necessarily mean that there is to be an Appellate Division in each department. It might be construed to direct the governor to designate, from the entire Supreme bench, those who should constitute the Appellate Division of the court, and to name, in the case of each appointee, the department in which he was to sit; or "the Appellate Division in each department shall be unable to dispose of its business partment" might be taken to indicate four Appel- within a reasonable time, a majority of the presiding late Divisions. justices of the several departments" may transfer

III. INDICATIVE OF FOUR APPELLATE DIVISIONS. 1. "Whenever the Appellate Division in any de

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