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THE GREEN BAG

of this power exist in the law of Torts, but one of the most striking is in the law of Contracts. In 1773 Lord Mansfield intro duced the doctrine of implied dependency of mutual covenants and promises, which has been accepted and acted upon by the courts and the profession ever since, although not a trace of it was to be found in the law before his time.' It was an innovation which in effect, as Professor Langdell says, overruled a long line of decisions. This act of Lord Mansfield can properly be described as an act of judicial legislation, in the sense in which that term is used in relation to the courts. It wrought a change in the common law. It was acquiesced in without question because it was reasonable and just and in harmony with the prevail ing standard of justice. In the United States from the Declaration of Independence the courts have often used the power which they undoubtedly possess to depart from established principles of the English common law and to introduce new rules. This power has been used in so many instances that the author of the leading English treatise on the Law of Negligence in his last edition abandons the attempt to present the law of the United States side by side with the English law, and says it is now plain, what he before suspected, "that though of the same parentage as ours, American law has been developing along divergent lines and accepts principles widely applicable that are to us not only novel, but fundamentally un sound." He cites three cases in support of his assertion. Although he condemns each case cited, he generously says in conclusion, "Yet the Americans have a genius for law; and the learning and brilliancy of the judg ments found in Johnson's or Metcalfe's or indeed in any of the best American reports on the historical development of the common law is such that no English

writer can afford to neglect them."1 It is not likely that American courts will turn backward in their course of innovation. They are more likely to go forward. To advance safely they must advance slowly and by short steps. Each new step should be justifiable upon sound legal principles, to secure a consistent development of the law. At this point the courts can obtain valuable aid from the law schools. The progress of the courts is limited by facts. A court can decide in any case only so much of the law as the facts of the case require. As Mr. Justice Hammond of Massachusetts said, "It frequently is not possible by a general formula to mark out the dividing line with reference to every conceivable case, and it is not wise to attempt it. The best and only practicable course is to consider the cases as they arise, and bearing in mind the grounds upon which the soundness of each principle is supposed to rest, by a process of elimination and comparison to establish points through which the line must run."2 Teachers of law in expounding a subject are not confined to the concrete facts of a case. To apply the illustration used by the learned judge, the law professor in a lecture or text -book is at liberty to collect the points established by the courts and draw the line through them, and extend it to new and imaginary cases, and show the completed figure when constructed according to sound principles of jurisprudence. In this way the law schools of the country, when the views of the professors become easily accessible in print, will be useful as a guide to the courts, without detracting in the slightest degree from their power or authority. The influ ence of precedent in the common law in the future seems likely to decline and the use of original reasoning from principle to increase, but the power of the courts is not likely to suffer any diminution. Their

1 Langdell, Summary of Contracts (ist. ed.) sees. 139-143.

1 Beven, Negligence (3d cd. 1907) Preface, vii-viii. 2 Martellr. White, 185 Mass. 255, 258, 9. (1904),