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for many years past has brought the lawyers of different countries together, and has done useful work in promoting uniformity in commercial law. The law schools, if they turned their attention to it, could further the same objects with more obvious and substantial results. We must have an International Association of Law Schools with a permanent staff. The central office will collect and disseminate information. Annual meetings will be held for the ventilation of matters of common interest. Another suggestion which I venture to make is that each law school of this continent should seek some special affiliation with one or more law faculties of the universities of Europe. An exchange of students and professors would follow. A close attachment of this sort might serve to concentrate effort and promote friendly rivalry between the associated groups.
That legal science would be advanced by the coördinated effort of the law schools of different nations will not be questioned. They have the world for their field, and they may do as much to shape the destinies of the world-law of the future as the Sabinians and the Proculians did for legal science under the early Roman Empire. I am speaking not of international law - jus inter gentes — which at the present moment is held in small esteem, but of that jus gentium, established, so the Romans taught, by natural reason amongst all peoples, which more and more extends its dominion over the commercial and the civil code. If indeed we have entered upon an era in which the contents of each system of positive law will be determined more by reason and less by tradition, will not reason in time eliminate what is unreasonable in each system, and will not community of ideas go some way towards reducing what is merely arbitrary and accidental in each system to a very considerable measure of uniformity? A universal code of commerce does not lie beyond the range of possibility. A universal civil code is perhaps not to be expected or desired, any more than a universal language. But all the indications point to a time when the legal systems of the world will come closer together in substance and even in form. To pursue the linguistic analogy they will speak no longer a babel of voices, but various dialects of a common tongue.
I have hinted already that if the law schools of this continent are to rise to the measure of their opportunity they must to some extent change their methods. I trust that I may, without offence, revert
to this point, for it is a matter of great importance. The law schools of North America, with one or two exceptions, teach the Common Law. They teach it with marked success. But they teach nothing else. I wonder how many law school graduates have any knowlege of the Twelve Tables, or of the Praetor's Edict, or of Justinian's codification of the Roman Law. How many of them can explain the difference between usufruct and life estate, or between fidei-commissum and trust? Do they know what is meant by the “dotal system” or by “community of goods between spouses”? If they do not understand these things, in what are they fundamentally wiser or better than the students of Blackstone's day, immersed in the lore of fines and recoveries, trespass and case, contingent remainders and executory limitations? Has any one told them that the study of a single system of law, particularly of a system which is not very systematic, is an illiberal study? Do they know that to study law is not the same as to study the law of any one country? In England legal education has not reached any high point of development, but at least no young man can go through a law course at Oxford or Cambridge and carry away with him the impression that Law means the law of England, or that legal study means the study of the Common Law. On this continent the Common Law is too completely absorbed in self-contemplation, like a lady admiring her face in the glass. Let her beware lest she suffer the fate of Narcissus and “die of her own dear loveliness.”
What has the Common Law done to hold its own in the world in competition with its rivals? We, who have been trained to it, boast of its perfection. We applaud its freedom from barren abstractions and niggling pedantries. But what have we done to make it intelligible or commendable to the foreigner? Has any law school on this continent undertaken a codification of the Common Law? The task would be worth attempting, if only for the sake of study and comparison. It is doubly worth attempting when the influence of the Common Law in the world — in South America for example – depends upon the manner of its presentation. If China comes to us for a code what have we to offer? She asks for bread, we give her a stone; -- for a code, we produce a casebook.
In recommending codification to the earnest attention of common-lawyers I express no preference for a codified system as a system to live under. It may be that we are better off as we
are. It may be that the time has not come for enacting the Common Law in the form of a Statute. But I am thinking not of enactment, but of influence. While the Common Law remains uncodified, it will have little weight in the world outside the countries (and the dependencies of the countries) in which it is at home. Another consideration to bear in mind is this. Code or no code, we cannot recommend our Common Law system to the lawyers of other nations, until we have learnt to present it to them in terms which they can understand; and to do that we must understand their law as well as our own.? This does not involve the mastery of a hundred different systems. It means a competent knowledge of Roman Law and of the institutions of customary origin which have combined with it to form the mixed systems of continental Europe and of Latin America. All these, diversely compounded out of the same materials, are fundamentally the same. To know one of them is to know the rest.
We are at the beginning of a new age. No one can forecast with any certainty what developments even some of us who are in middle life may live to see. There are those who think that the best hope for the world's future lies in the coöperation of the English-speaking nations to promote the ideals which they share in common. If this is our destiny, we must enlist all our forces in its service. Our law is one of the things we have in common. It is one of the best things we have. We have kept it to ourselves when we might have given it to the world. Is it too late to change our ways? Let the law schools answer. The future is in their hands.
R. W. Lee. MCGILL UNIVERSITY.
6 I am speaking, of course, of the Common Law States and Provinces of the United States and Canada. In my own Province of Quebec, as in Louisiana, the Civil Law is codified.
7 See an address on the “Unification of Law” delivered before the Liverpool Board of Legal Studies by the late Lord Justice Kennedy, 10 J. Soc. OF COMPARATIVE LEGISLATION 218: “Now, you
agree that in order to unify law we must try to understand and appreciate that law, different from our own, which is in force in those States, whose agreement to a common code we labour to secure. There is not much use in trying to persuade a man to prefer our system to his, or to modify his own, if he sees that we do not understand what the principles and rules of his system are.”
While speaking of this matter, I gladly refer to the valuable CONTINENTAL LEGAL History SERIES published under the auspices of the Association of American Law Schools, which goes some way towards disseminating knowledge of legal systems other than the Common Law.
COVERT LEGISLATION AND THE CONSTITUTION
rative and marked rather by reminiscence than forecast. Yet even here the minor prophets have a place, and the following pages are an attempt to picture, rather than survey, a field of constitutional contest by no means unknown, but certain to produce in the future a crop of acrimonious litigation larger than it has yielded hitherto. Lawyers will increasingly deal with statutes whose constitutional support bears no sincere relation to the legislative and popular purposes sought to be attained. This is covert legislation.
Obviously the legislative will is more likely to be thus covertly embodied by Congress than by state legislatures, because in national law-making a definite constitutional peg must be found whereon to hang the statutes; states have the harder task of evading definite prohibition.
Appetite for broad general legislation grows, and the discovery of enough powers enumerated or implied to justify national and nation-wide regulation of industrial and social conditions becomes increasingly difficult. Why partisans of every shade vie in urging Congress “to do through the agency of the national government the things which the separate state governments formerly did adequately" 1 is interesting but immaterial; the fact remains and produces an indirection in statute-making sure to affect the constitutional theories of lawyers, because such indirection seems necessary to accomplish results apparently demanded by majorities of laymen. Further, the popular desire for national legislation minutely affecting interpersonal relations is fostered and supplemented by the urge of local leaders to get "from Washington" as much pecuniary support as possible.
It is common knowledge that we have a federal Constitution historically representing painful compromise with a popular wish to keep all power at home, i. e., in the states; that home feeling,
1 ELIHU Root, ADDRESSES ON GOVERNMENT AND CITIZENSHIP, 367. That the states ever performed "adequately” sounds like a polite but hollow compliment; nor does the context show that Mr. Root intended more.
the provincial instinct, is decaying fast; and even where it is yet strongest (as in the South) insistence on local help through national legislation is stronger, and all men ultimately think most and best of the good provider. Today a majority of all citizens turn to the nation as the provider.
Our professional preparation for criticism of the legislation, which is the certain corollary of the foregoing axioms, is worth consideration, as is also some view of the existing legislative situation. Experience we have had, but past instances of congressional indirection have not often been of the sort to attract acute public discussion; they have not come very near daily life, or have been popularly viewed and excused as "war” measures.
Upon the postal monopoly has been hung one of the most curious and least noticed minor increments of national power. What is now quite well known as the "scheme to defraud" statute had its origin in the Act of June 8, 1872, passed into Revised Statutes, Section 5480, and after sundry enlarging changes is now Section 215 of the Penal Code. It was primarily designed to punish “green goods men” for swindling their equally dishonest victims, by tricks always embracing a bringing of dupes from a distance and to a crowded city, there to be cheated. Such criminals always depended (for distribution of bait) directly on postal facilities as distinct from personal contact. Accordingly the first statute ran: “If any person having devised . .. any scheme to defraud ... to be effected by . . . opening correspondence” with others, and used the mail for that purpose, he was guilty. Now, and for years back, the law is that “whoever having devised
.to defraud, shall for the purpose of executing such scheme,” use the mail is guilty of offending against the United States.
The judicial treatment of this growth is a not uninteresting study in minute legal history, but the congressional advance is important. The nation has passed from trying to suppress a nuisance that depended on the mail for profitable existence, to punishing any and every procurement of money under false pretenses (and many other less definable frauds), if even inadvertently a postal card is mailed in the execution thereof. Those who have assisted in enforcing criminal law in centers of population, know well that the
? 17 STAT. AT L. 323. : It may be traced in Gould & TUCKER, NOTES ON THE REVISED STATUTES, $ 5480.