to both sides of a question having a hearing should be taken. "Tried expedients," "verified conclusions," "traditional beliefs" should not be abandoned without mature deliberation. But when the checks upon the popular will exceed what is necessary to these ends, they not only cease to serve a useful purpose, but become obstructive. Discussion which is stopped at the outset from changing social conditions is useless. When the door to orderly change is closed, the only remaining alternative is revolution.

If the federal constitution were less rigid, both life and property would probably be more secure. A more flexible instrument would not hold things in a vise-like grip, but would permit changes in governmental policy with less social tension. The constitution as it stands leads the courts to make forced interpretations, makes for obstructive delay in the righting of grievances, and pens up the ferment of society until it sometimes threatens the social order. It has discouraged the existence of a party committed to any cause that requires a constitutional amendment. It has helped to make our political contests largely scrambles for offices. So far as principles are concerned, the difference between our leading parties has usually been so slight that it has been very difficult to distinguish between them. In such a humanitarian and democratic age as the present, a constitution that is "based upon the concept that the fundamental private rights of property are anterior to government and morally beyond the reach of popular majorities," 1 and that is at the same time so difficult to amend is out of keeping with the times. So scholarly a man and conserva

tive a thinker as Professor Monroe Smith maintains that

In Kentucky, not more than two amendments can be submitted at a time; in Arkansas, Kansas and Montana, not more than three at a time. In New Jersey and Pennsylvania, no amendment or amendments can be submitted oftener than once in five years; in Tennessee, not oftener than once in six years, and in Vermont, not oftener than once in ten years. A number of states require a majority of those voting at an election for the adoption of an amendment. In these states, a majority of those voting for and against an amendment does not necessarily suffice. No less than forty amendments that have been added to the constitution of Michigan would have failed to carry if this requirement had been in force.3 In Wyoming, a majority of the qualified electors, whether voting or not is required. In Pennsylvania, an "amendment must be passed by two successive legislatures before it can be voted on by the people, and the legislature meets only on alternate years.' The amendment of the constitution of Illinois is especially difficult. A two-thirds vote of each house is necessary to propose

1 Beard, Charles A., An Economic Interpretation of the Constitution of the United States, p. 324.

2 Thorpe, Francis Newton, The Federal and State Constitutions of the United States.

3 Fairlie, John A., The Referendum and Initiative in Michigan, p. 149.

4 Lewis, William Draper, "A New Method of Constitutional Amendment by Popular

Vote," Annals of the American Academy of Political and Social Science, p. 322.

an amendment. Not more than one article at a time can be amended, and the same article not oftener than once in four years. Finally, a majority of those voting at an election is required to adopt an amendment.1 As a result, many reforms that depend upon amending the constitution are practically at a standstill. The advocates of different amendments block each other. The friends of the initiative and the referendum prevent the reform of the general property tax and vice versa. Each demands the right of way. In the meantime, the reorganization of the judiciary, the short ballot, the abolition of minority representation in the legislature and home rule for cities are obliged to wait.2 One is reminded of the celebrated Lecompton constitution whch was nearly foisted upon the people of Kansas. In providing for its own amendment, it declared: “But no alteration shall be made to affect the right of property in the ownership of slaves."

One might suppose that the constitution of New York is particularly difficult to amend, judging from the amount of criticism which the highest court of the state has excited in recent years. This, however, is not the case. The constitution has been amended on numerous occasions since its adoption in 1894. New York is suffering from the archaic condition of its judicial mind rather than from the rigidity of its constitution. Professor Walter F. Willcox has noted that the court of appeals, in holding the Workmen's Compensation Act unconstitutional, substituted its own assumptions for the facts. In the face of statistical evidence to the contrary, the court held that the statute "does nothing to conserve the health, safety or morals of the employees." 4 Such an attitude of mind is unscientific and until it is corrected no mode of amending the constitution, however facile, can prevent salutary measures from being held up for a time by the courts. "A master of legal history tells us that taught law is tough law. Certainly it is true that our legal thinking and legal teaching are to be blamed more than the courts for the want of sympathy with social legislation which has been so much in evidence in the immediate past. One might almost say that instead of recall of judges, recall of law teachers would be a useful institution. At any rate, what we must insist upon is recall of much of the juristic and judicial thinking of the last century." 5

LAW IN BOOKS AND LAW IN ACTION

BY ROSCOE POUND, OF THE HARVARD LAW SCHOOL

(From the American Law Review, January-February, 1910, Vol. XLIV, pp.

12-36)

When Tom Sawyer and Huck Finn had determined to rescue Jim by digging under the cabin where he was confined, it seemed to the uninformed lay mind of Huck Finn that some old picks the boys had

1 Thorpe, Francis Newton, op. cit.

See an interesting series of newspaper articles by Arthur M. Evans, in The Chicago Record-Herald during November and December, 1913.

3 Debates of Lincoln and Douglas, op. cit. p. 109.

4 The American Journal of Sociology, Vol. XVIII, 1913, pp. 606-612.

5 Professor Roscoe Pound, The American Journal of Sociology, Vol. XVIII, 1912, p. 339.

found were the proper implements to use. But Tom knew better. From reading he knew what was the right course in such cases, and he called for case-knives. "It don't make no difference," said Tom, "how foolish it is, it's the right way—and it's the regular way. And there ain't no other way that ever I heard of, and I've read all the books that gives any information about these things. They always dig out with a case-knife." So, in deference to the books and the proprieties, the boys set to work with case-knives. But after they had dug till nearly midnight and they were tired and their hands were blistered, and they had made little progress, a light came to Tom's legal mind. He dropped his knife and, turning to Huck, said firmly, "Gimme a case-knife." Let Huck tell the rest:

He had his own by him, but I handed him mine. He flung it down and says, "Gimme a case-knife."

I didn't know just what to do — but then I thought. I scratched around amongst the old tools and got a pickax and give it to him, and he took it and went to work and never said a word.

He was always just that particular. Full of principle.

Tom had made over again one of the earliest discoveries of the law. When tradition prescribed case-knives for tasks for which pickaxes were better adapted, it seemed better to our forefathers, after a little vain struggle with case-knives, to adhere to principle - but use the pickax. They granted that law ought not to change. Changes in law were full of danger. But, on the other hand, it was highly inconvenient to use case-knives. And so the law has always managed to get a pickax in its hands, though it steadfastly demanded a case-knife, and to wield it in the virtuous belief that it was using the approved instrument.

It is worth while to recall some of the commonplaces of legal history by way of illustration. One of the first difficulties encountered by archaic legal systems founded upon the family and postulating for every sort of legal, social and religious institution, the continuity of the household, was the failure of issue, the want of the son to perpetuate the household worship, whom religious and legal dogmas required. No one thought of superseding these dogmas, but their manifest inconvenience and injustice were avoided by the device of adoption. Presently a better way of disposing of property after death, without infringing upon ancient doctrines, occurred to some Roman. Why not sell his whole household and estate to the person upon whom he desired it to devolve? But if he so sold it, and the purchaser was an honorable man, the latter would carry out oral instructions at the time of the transfer as to the purpose for which it was made and the disposition to be made of the property. After this had gone on till every one had begun to employ the proceeding, a law of the Twelve

Tables gave legal efficacy to the oral instructions, when the form of sale was had, and wills had come into being. A better example is to be seen in the Roman law of marriage. The religious marriage, which was the only one recognized by religion and hence by law, was not open to the plebeian. In consequence he did not have his wife in manus or his children in potestas, and his household had no standing before the law. The law was not altered. It was not enacted that there might be marriage without a wife in manus and a family without children in potestas, but purchase or adverse possession and the statute of limitations were resorted to in order to bring the plebeian's wife into manus in another way. Our own law furnishes many such instances. When the Anglo-Saxon king desired to extend the protection of his peace to some one, he took him by the hand publicly and made of him, for legal purposes, a minister or servant entitled to the king's peace which attached to members of his household. When wager of law had made the action of debt a worthless remedy upon simple contracts, wager of law was not abolished, but the courts found a trespass and a breach of the king's peace in failure to perform a promise, if only something had been given presently in exchange for it, and thus imposed upon our law of contracts the formality of a consideration. When the delay and formalism of real actions and the incident of trial by battle made them inadequate remedies, a fictitious lease and fictitious ejectment were resorted to in order to make another remedy meet the situation. When the hard and fast form of writ and declaration failed to provide for new cases of conversion of a plaintiff's property, the form was not altered, but the loss and finding were assumed from the conversion; so that we are able to read in an American report of the nineteenth century that the plaintiff casually lost one hundred freight cars and the defendant casually found them and converted them to its own use, as if it were a watch or a pocket book that had been lost.

We are by no means so much wiser than our fathers as we sometimes assume. While we have few of the old fictions of procedure left, we can make new ones of our own upon occasion in the like spirit. The mode of reading bills to some of our state legislatures pursuant to constitutional requirements is in every way worthy to go down in history with ac etiam and quo minus. The doctrine of the presumed citizenship of stockholders of corporations, and hence of the corporations, for purposes of suit in the Federal courts, is worthy of the courts that found a breach of the king's peace in fraud and deceit. But it is not of fictions of themselves that I would speak. They soon get into the books and become part of the law as it is written. They mark where there was once a distinction between law in the books and law in action, and show one way in which the two have been brought into accord. They show where and how legal theory has yielded to

the pressure of lay ideas and lay conduct. The current divergencies are not yet so marked. They escape notice. The fictions that are to mark them for future generations of jurists are in the making. But if we look closely, distinctions between law in the books and law in action, between the rules that purport to govern the relations of man and those that in fact govern them, will appear, and it will be found that to-day also the distinction between legal theory and judicial administration is often a very real and very deep one.

statute

Let us take a few examples. It is a settled dogma of the books that all doubts are to be resolved in favor of the constitutionality of a - that the courts will not declare it in conflict with the constitution unless clearly and indubitably driven to that conclusion. But it can not be maintained that such is the actual practice, especially with respect to social legislation claimed to be in conflict with constitutional guaranties of liberty and property. The mere fact that the Court of Appeals of New York and the Supreme Court of the United States differed on such questions as the power to regulate hours of labor on municipal and public contracts, and the power to regulate the hours of labor of bakers, the former holding adversely to the one1 and upholding the other, while the latter court had already ruled the opposite on the first question and then reversed the ruling of the New York court on the second, speaks for itself. Many more instances might be noted. But it is enough to say that any one who studies critically the course of decisions upon constitutional questions in a majority of our state courts in recent years must agree with Professor Freund that the courts in practice tend to overturn all legislation which they deem unwise, and must admit the truth of Professor Dodd's statement:

5

The courts have now definitely invaded the field of public policy and are quick to declare unconstitutional almost any laws of which they disapprove, particularly in the fields of social and industrial legislation. The statement still repeated by the courts that laws will not be declared unconstitutional unless their repugnance to the constitution is clear beyond a reasonable doubt, seems now to have become "a mere courteous and smoothly transmitted platitude."

Departure from the legal theory at this point is leading to another change. The doctrine of the books is that an unconstitutional statute is simply a nullity. There never was such a statute. No legal effect whatever has been produced. But when in five years the courts of

1 People vs. Coler, 116 N.Y. I.

2 People vs. Lochner, 177 N.Y. 145.

U.S. vs. Martin, 94 U.S. 400.

4 Lochner vs. N. Y., 198 U.S. 45.

Green Bag, XVII, 416.

"The Growth of Judicial Power," Political Science Quarterly, XXIV, pp. 193, 194,