This rule of law was followed blindly for hundreds of years, revered as a guiding precedent, and sanctified by tradition. No one dared to oppose this rule or to suggest a change. Unchallenged, it continued in force until a great man, a man endowed with a liberal and progressive point of view, and trained in commercial justice, came to the Bench. This man was Lord Mansfield.

In spite of the protests of some of the greatest judges in England at the time, who objected to the uprooting of the early rule, Lord Mansfield declared that greater nonsense than the early rule had never been uttered, and changed the rule by his opinion in Kingston v. Preston, decided in 1773, to the effect that before one party to a contract should be bound to carry out his promise, the other party must be ready, able and willing to perform his covenant. This now seems elementary to us.

There is nothing holy or mystic about the law. The law is simply a part of life itself, and must correspond to the inexorable business, economic, social and ethical demands of the community. If it meets these, it is good law; if it does not meet these, even though it have every precedent back of it from William the Conqueror down to today, it is bad law. The sole test is not, is there a precedent in point? Perhaps nine lawyers out of ten think it is; perhaps nine judges out of ten think it is; but they are in error, because what may be perfectly good law in 1890 may be outrageous law in 1923. The law must change; it must progress; it must keep pace with the changing needs and altered conditions of the times. It should be a mirror to reflect the progress of society. And although there are times when, for want of a better guide, courts must follow the principle of stare decisis, yet great care must be taken in the application of this principle so that it may not hamper and bind both justice and progress. The law must not be hobbled.

Another illustration of the point is found in the rule at common law, that if a man borrowed money from another, and gave his land as security for the repayment of the loan by a certain date, and if he did not repay the loan at the precise time specified, his property was completely lost to him. He might not have been able to get to the place of redemption on account of fire or flood, but that made no difference. There was an absolute forfeiture. The land was forever lost to the mortgagor. There was no remedy for him at common law. Finally the people appealed to the king, and the king referred their complaints to the chancellor, who usually was an ecclesiastic, learned in civil and canon law, and not merely in common law. 'Douglas (Eng.) 689 (1781).

These chancellors, looking at the matter in the light of conscience and reason, realized that it was unjust to deprive a man of his property, worth many times the amount of the loan, just because he was a few hours late with the repayment. They evolved the doctrine of the "equity of redemption" which to-day has become so much a part of our law that it is frequently spoken of as a "favored child." But it was brought into our law not because of, but in spite of, the common law judges. It came into our law because minds, unhampered by technical legal tradition, cultured minds, minds with breadth and with vision, could see beyond the letter of the common law.

5

Countless illustrations of this could be given, but a further one from the field of corporation law will be sufficient. Common law courts have held that a corporation is a legal entity and artificial person, separate and distinct from its stockholders. In the Dartmouth College case, decided over a hundred years ago, a corporation was defined as an invisible and intangible being, existing only in contemplation of law. Year after year this definition has been quoted and requoted. As a definition it is absurd and meaningless. But it has a pleasant sound to it, and subsequent judges have cited and quoted it. This corporate fiction became so deeply rooted into the law that courts refused to penetrate into the facts behind it. In one case in mind, A, B and C sold their business out to X. They agreed not to run a similar business in the town. A few months later they formed a corporation and immediately proceeded to engage in the same business. When X sought injunctive relief, the court held that A, B and C were innocent because they were doing no wrong; that it was the corporation that was carrying on the business and not the individuals. And, because of this fiction of the law, A, B and C were actually allowed to circumvent their solemn covenant.6

In 1912 I said that courts should not allow the corporate entity to be used as a trick or device in order to circumvent obligations, evade contracts, or avoid statutes. That seems like good common sense. Some courts are now holding this." Twenty-five years from now who will doubt it ?8

The difficulty is that many of our judges are inclined to blow a legal bubble until it bursts. They press a principle, in other words, to a point where it becomes a reductio ad absurdum. They overlook the present-day social, economic and business effects of their decisions.

"Dartmouth College v. Woodward, 4 Wheat. (U. S.) 518 (1819).

"Moore & Handley Hardware Co. v. Towers Hardware Co., 87 Ala. 206 (1888). "Quaid v. Ratkowsky, 183 App. Div. (N. Y.) 428 (1918); aff'd 224 N. Y. 624 (1918).

See 12 Col. L. Rev. 496 (1912).

What originally may have been based on common sense may be sheer nonsense in the course of a few generations, and sometimes even in the course of a few years.

This

Decisions that run counter to common sense cannot meet with popular favor. Sooner or later they lead to dissatisfaction. is invariably followed by one of two consequences.

In the first place, there is the demand for the intervention of the legislature. This body annually adds a prodigious amount of heterogeneous statutes which in turn add considerably to the confusion of the law. Much of the legislation, particularly on legal subjects, is so poorly worded, so obscure, and so unclear, that even our courts cannot agree on what the legislative intent may have been. A striking illustration of this may be found in the interpretation of the sections of the new Civil Practice Act relating to examinations before trial. We find Justice Benedict of Brooklyn, a recognized authority on the subject, holding that you are entitled to an examination before trial of a defendant in a negligence case. We find Justice Clarke of Manhattan, also an authority on pleading and practice, holding the exact opposite. Justice Benedict says the Civil Practice Act, as now framed, changed the earlier rule; Justice Clarke denies that. This leaves us with one law on one side of the East River and another law on the other side of the East River. Justice Aspinall, the other day, followed his colleague, Justice Benedict, whereas, on the other hand, in the First Judicial Department the decision of Justice Clarke is followed. This is the trouble with legislative intervention, for who knows just what the statute means?

In the second place, and undoubtedly the more serious consequence of this feeling of dissatisfaction on the part of the layman, is his growing contempt for law and lawyers. The legalistic point of view tends to become a joke and a by-word in the community. He regards the lawyer as a quibbler. He dreads the outcome of his case even though he is sure of its merits. If, on the other hand, he is dishonest, he seeks advice from a lawyer as to how to keep "within the law." Honest men dread any litigation at all, and are often willing informally to arbitrate or even to surrender their rights rather than incur the expense and trouble of litigation. No one is certain of the outcome of any action. Every lawyer will admit that he has won cases he should have lost, and lost cases he should have won, that is, on a basis of merits. The trial of a case too often, instead of being a trial of the facts, becomes a trial of technicalities. It is often more important that the pleadings be correct than that the merits be adjudicated. Instead of the practice and procedure of the trial being a

mere detail, it becomes the main feature.

It has been estimated by

actual statistics that fifty per cent. of the time of the courts is taken up by matters of procedure that have no bearing on the merits of the case. And yet, should a judge disregard a rule of practice in an effort more truly to administer justice in an action, it generally will be ground for reversal on appeal. I will, however, grant that in recent decisions the higher appellate courts have frequently endeavored to free themselves from the shackles of technicalities, and to refuse an appeal where the technical errors do not substantially affect the rights of the parties. This is a step in the right direction. But one cannot expect the layman to have much respect for a system of legal procedure so complicated as to be comprehensible only to a few lawyers. One of the best ways to allay the popular discontent is by clarifying and simplifying legal procedure, and by freeing it of its technicalities. A sense of justice is inherent in every man, and courts of justice, whose aim is the determination of the rights of the litigants, will meet with more favor than courts of sheer law, where abstract legal reasoning prevails, so guided by precedent, so bound by tradition, and so hampered by technicalities that the decisions rendered often are out of harmony with the sociological, the ethical, the economic, and the business conditions of the times.

The first thing, in my opinion, which a judge should consider, is not, "Is there a precedent in 1492?", not "What did Lord Coke say?", not "What did Mr. Justice Blank hold in 1885 at the old General Term?"; in other words, not whether there is some ancient authority in point, but the first thing he should consider is the effect of his decision sociologically, economically, and upon business. Precedent should not by any means be disregarded, but it should be relegated to its proper place. A precedent, to my mind, is only of value in so far as it still conforms to the mores of the times. Law must conform to the customs of the times, to the mature sentiment, wishes and will of the people. What the permanent majority of the people want is generally correct. The community feeling for justice and right dealing must find expression. I have infinite confidence in the American people, and in their will to do the right thing. Our republican system of government is based upon this principle.

To the extent that precedents help us in determining what the will of the people is, they are useful; to the extent that they interfere with our attaining that end, they are detrimental. A Justice recently said to me, "I often wish that every precedent in the books were buried." While this may be an exaggeration, there are, nevertheless,

'See article by Thomas W. Shelton, Esq., in 9 Am. Bar Assn. J. 9 (Jan. 1923).

many able thinkers who feel that too often the demands of the people have been ignored because of out-of-date precedents, entirely inapplicable to present-day situations.

As an illustration of this, let us take the recent Minimum Wage decision of the Supreme Court of the United States.10 There was a statute passed by an almost unanimous Congress of the United States, the duly elected representatives of the entire nation. It was only after due deliberation and after consultation with political economists, with sociologists, and with students of affairs, that Congress passed a law regulating the minimum wage for women in certain industries in the District of Columbia. The reason for the enactment of the law is obvious to every thinking man and woman. Its purpose was to keep women in industry off the streets, to preserve the sanctity of the home, to prevent women from becoming worse than chattels. A dozen states have such laws, and they have been upheld by their courts of last resort.

A majority of the Supreme Court of the United States held that the Federal statute was unconstitutional. Why? Because they said it interfered with freedom of contract. Interference with freedom of contract! What freedom of contract is there between a girl seventeen years old, who has to go out and make a living, on one hand, and the corporate proprietor of a great undertaking, on the other hand? Not freedom of contract, but the exact opposite!

There were dissenting opinions, it is true. Chief Justice Taft, and Justices Holmes and Sanford dissented. In reply to the majority's argument that there must be freedom of contract, Judge Holmes, with characteristic insight, said: "Usury laws prohibit contracts by which a man receives more than so much interest for the money that he lends. Statutes of frauds restrict many contracts to certain forms. Some Sunday laws prohibit practically all contracts during oneseventh of our whole life. Insurance rates may be regulated. Contracts may be forced upon the companies. Employers of miners may be required to pay for coal by weight before screening. Employers generally may be required to redeem in cash store orders accepted by their employees in payment. Payment of sailors in advance may be forbidden." And Justice Holmes cited many Supreme Court

decisions that so held.

Think of that! In all those ways the United States Supreme Court itself has interfered with freedom of contract. They have even said that sailors shall not be paid in advance of a voyage. The

10Adkins v. Children's Hospital, and Same v. Lyons, 261 U. S. 525 (1923). "Idem, at p. 568.