already been adjudicated after a hearing), and brought for trial to the bar of justice, and that this can be done, in successive cases between different parties, over and over again, till at last, through every cloud of error, the truth shall be revealed to all men and be enthroned?

7. So far as has been discovered the courts of this country have always treated the question of the legal effect of precedents as one to be determined by the maxim of the English common law known as the stare decisis rule. That rule, useful though it may be when properly limited in its application, seems to have made blind spots in the mental eyes of our judges. It is believed that up to this time they have, without exception, overlooked the obvious fact that in this country the question is primarily a constitutional oneconstitutional because its answer necessarily depends on the answer to the question whether our courts generally, and our courts of last resort in particular, are authorized by our constitutions to make and change our laws.

My Dear Mr. Clarke:

§8. Letter from Mr. Moot.

Buffalo, N. Y., January 19th, 1916.

I thank you very much for your kindly suggestion that the Board of Statutory Consolidation shall embody in their proposed short practice act one or the other of the sections you proposed to the State Constitutional Convention upon the manner in which the Judiciary shall pass upon the constitutionality of statutes, the interpretation of statutes, and the way they shall weigh judicial precedents.

Personally, I think well of your suggestion, as I wrote you. But whether the conservatism of the profession can be overcome by getting them to see and understand this matter aright, I do not know. In the discussion by the Bar Association of the proposed Simplified Practice Act and Rules, I observed that there are a good many judges and lawyers of a high-minded type who are somewhat distrustful of giving our courts greater liberty to think and act on their own responsibility in matters of practice and matters of substantive law.

You may not know that from the time the Board of Statutory Consolidation began to work together in 1904, it has had one simple rule as to all work of innovation in connection with the Consolidated Statutes or simplifying the practice, and that is, that no radical change shall be 12

VOL. L.

made unless it represents the unanimous judgment of the Board. While this rule has undoubtedly prevented the Board from going as far as it otherwise would in some cases, and has, I think, prevented some wise, if not necessary reforms, upon the other hand it has proved a salutary rule, which has kept the Board from adopting innovations more radical than the Bench and Bar were prepared for at the time. To this somewhat conservative view we owe the fact that we have been able to make a good deal of progress. I hope, as the result of discussion, we will make a good deal more progress, and will succeed in getting a simplified Practice Act and Rules of Court into operation within the next year. Our work yet needs much revision and condensation, but its plan and purpose seem to meet with universal approval by Bench and Bar, and the details can all be put into acceptable form, as the result of the independent and helpful criticism continually being made.

I will take pleasure in bringing your suggestions before our Board, with my personal recommendation that the proper section to cover the subject be included in the Practice Act. I think you are dead right about what the attitude of the courts ought to be toward all questions of constitutional law, statutory construction, and the weight of precedents, and if we will boldly say so, we will do much to remove more or less just criticism of the Bench and Bar.

I am sorry the Carr-Kimball case could not have been reviewed by the United States Supreme Court, but such is often the fate of litigations.

II.

Sincerely your friend,

ADELBERT MOOT.

PROPOSAL FOR A SUBSTITUTE SECTION IN THE FEDERAL COTTON

FUTURES BILL.

The reasons supporting the proposal for the New York short practice bill also support the following proposal:

The enclosed clipping shows that a House Committee has reintroduced the Cotton Futures Act with an additional section reading as follows:

"Sec. 23. That if any clause, sentence, paragraph, or part of this act shall, for any reason, be adjudged by any court of competent jurisdiction

to be invalid, such judment shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, or part thereof directly involved in the controversy in which such judgment shall have been rendered."

I think this is as wrong as can be, and very much wish that the Committee could be persuaded to substitute a section reading substantially as follows:

"In the event that any clause, sentence, paragraph, or part of this act shall be held unconstitutional by the Supreme Court of the United States in adjudicating a lawsuit, the enforcement of the particular portion of this act so called in question shall be suspended until further action by Congress or by the people of the United States, or until the Supreme Court in a subsequent case reconsiders and reverses its ruling, and the remainder of the act shall be enforced regardless of the adjudication. In the event that the adjudication shall be made by any other court the enforcement of the act and all of its provisions shall nevertheless be continued as against all persons not entitled to the benefit of the adjudication as parties to the lawsuit."

I am now trying to get the proposed amendment of the Constitution of this State relative to the legal effect of precedents made a legislative regulation of judicial procedure. See enclosd copy of my letter to the State Board of Statutory Consolidation, dated yesterday.

Sincerely yours,

S. B. CLARKE,

$10. Letter from Mr. Caffey.

Dear Mr. Clarke:

January 20, 1916.

I am very glad to have your letter of the 19th instant, commenting on section 23 of the Lever bill for the re-enactment of the United States cotton futures act. I had read the editorial in the New York Times of the 18th instant, which you enclosed.

The provision objected to is not new. For instance, you will find exactly the same wording in section 29 of the Federal Reserve Act of December 23, 1913 (38 Stat. 251), and in section 26 of the Clayton Anti-Trust Act of October 15, 1914 (38 Stat. 730). It has repeatedly been used in State legislation; an illustration of this is section 8 of the Act of July 19, 1907, passed by the legislature of Alabama (Alabama Laws, 1907, page 488; Vol. 3, Code of Alabama, 1907, sec. 7377).

The Lever bill merely incorporates a legislative declaration for which there is already precedent in both Federal and State laws. My understanding of the theory of it is this: it endeavors to eliminate a difficulty, which courts have expressed in their opinions, in ascertaining what was the legislative mind, when they have to determine whether a portion of

a statute which they declare unconstitutional is so far separable that the remainder may be permitted to stand. The editorial in the Times is replete with misstatements as to detail and I think has attributed to the author of the Lever bill a motive which he never entertained for a moment. The purpose is diametrically opposite to that attributed to Mr. Lever; his effort is to aid, rather than to curb or diminish the power of the courts.

Would not your proposed substitute have the same effect as section 23 of the Lever bill, and an additional effect? It strikes me, upon the very cursory consideration I have given to the matter, that the clause you propose would have the identical effect of Mr. Lever's clause; and have a further effect, which might be desirable.

The bill is pending before the House Committee on Agriculture. I anticipate that a Committee like that would feel that it is inadvisable to attempt, in a statute like this, to depart from a policy of legislation already established by Congress. In other words, it would be deemed impracticable, in the course of consideration of the re-enactment of the Cotton Futures statute, to bring before Congress a new issue that might prove to be controversial.

I have read with great interest your letter to Judge Rodenbeck, which you enclosed. I am entirely in sympathy with what you say. It is very certain that the force of precedent has been carried much too far by the courts of this country. It is also true that much of the criticism and discontent, to which the courts are now subject, is misdirected and founded upon misunderstanding.

I should like very much to have your opinion of the Times editorial after you have considered the facts I have brought to your attention above.

The House Committee on Agriculture has recently reported a bill for the enactment of a law regulating the warehouses in this country, the constitutionality of which is dependent upon the welfare clause of the Constitution. Within a few days I shall send you a copy of the bill and the Committee's report on it. I should like to know what you think of the legal question there involved.

"Would not your proposed substitute have the same effect as section 23 of the Lever bill, and an additional effect? It strikes me, upon the very cursory consideration I have given to the matter, that the clause you propose would have the identical effect of Mr. Lever's clause; and have a further effect, which might be desirable."

This is a correct interpretation of the intended meaning of my proposed substitute for Section 23. The main objection I have to Section 23 as now framed is that it is constitutionally wrong in declaring or assuming that the legal effect of a decision of a Court in a lawsuit, that an Act or part of an Act of Congress is unconstitutional is an adjudication binding other persons than the parties to the lawsuit, or in other words that the legal effect of the decision is to bind everybody, including Congress and the Executive, or in other words that the courts have supreme legislative power. Congress never ought to have taken, and never ought to take again, such a position as that. On the contrary Congress ought, as I think, to take measures at once for disabusing the minds of judges and lawyers of the idea that the courts have any other function than to adjudicate each lawsuit when it is reached for decision according to the truth of fact and law as they then see the truth, regardless of all past errors. In this way Congress may easily, without stirring up any bad passions or rousing the people to turbulence, check the insidious encroachments upon the functions of Congress and State legislatures which our courts are silently making from day to day— encroachments which the judges themselves, who are almost universally loyal and high-minded men, do not perceive because they are blinded by the stare decisis habits of thought to which they have been disciplined, but which are flatly inconsistent with the departure from English tradiditions and practices made by the American colonists when they established their independence and substituted written constitutions as their supreme law in place of the vague and storm-engendering unwritten constitution of England.

The Times' editorial criticisms of Section 23 of the Cotton Futures bill seem to me to be entirely misconceived and valueless.

I shall be very glad indeed to see the warehouse bill and report.

Sincerely yours,

S. B. CLARKE.

III.

THE RELATION OF THE PROPOSALS TO THE EXISTING DISCONTENT WITH THE ADMINISTRATION OF JUSTICE.

12. The way in which the discontent has manifested itself hitherto is by public criticism, often harsh and bitter, and sometimes impugning the bona fides of judges; and by the political agitation and organization of voters for grave constitutional changes, such as the recall of judges and the recall of decisions and the abolition of the power of