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liberty or property without first giving him an opportunity to be heard on all questions of law, as well as of fact, involved in the deprivation; see letter to Mr. Rodenbeck; ş1 ante;

Fifth—The constitutional amendment principle, by which the power to change the supreme law is reserved to the people themselves acting according to a prescribed mode of procedure and is denied to the courts and every other governmental agency.

§ 6. These principles, by necessary implication, carry with them the idea that the meaning and scope of constitutional and statutory provisions can never be settled by judicial decisions in lawsuits till they are settled right—that is, right according to the true intent and meaning of the Constitution and statutes. Judges cannot make law in this country; they are excluded from that function by the Constitution. In this nation it is illegal as well as highly immoral doctrine which says to the judges of our courts: Stick to your decisions whether right or wrong. Be blind to your errors. If the people do not like your decisions let them amend their constitutions and statutes."

This false doctrine has considerable credence among lawyers, and in non-litigated matters influences the advice which they give to clients, and in litigation influences the selection and statement of issues to be presented to the courts for decision and the arguments by which those issues are supported.

Ought I not,” some judge may ask, “to try to mold my opinion of what the law is, as I see it in the present case, into conformity with the opinion which I expressed in a prior case or with the opinions of other courts in prior cases or with the opinions of the courts of last resort in prior cases?No; you ought not to make any such attempt. Your oath does not permit you to do it. You are not commanded to be consistent with your prior opinions or with the prior opinions of any other judge or court; but you are commanded to be consistent with the Constitution and with statutes made in pursuance thereof according to their true intent and meaning, as you understand that intent and meaning at each time you are called on to act officially. Any attempt which you may make at consistency with prior judicial decisions will surely absorb your attention and blind you to your duty. Confession of error to prevent dogged persistence in error and to prevent the propagation of error and to unfetter the mind is a necessary element of true scientific method. For all human relations is it not dictated by the ethics of Christ? For proceedings in courts is it not enjoined upon all judges by the State's Constitution and the Nation's Constitution?

Is not the basis now proposed for the administration of justice in courts a solid ground for belief in progress toward perfection of the law and in the gradual development of a higher and more lasting civilization in the United States of America than has yet been attained by any nation in the life of the world? Prior to the nineteenth century the stare decisis habit of thought in the mental processes of theologians, jurists, legislators and physicists made all real advances in knowledge very difficult and well-nigh impossible. During the nineteenth century physicists shook off the stare decisis habit and approached the problems of medicine and surgery and mechanics and other physical sciences with unfettered minds; with what result of good for mankind everybody knows. Is it not time for lawyers and judges to take thought and exert their wills in order to rid themselves of the same bad habit? Are they not commanded to do this by the supreme law, whose supremacy they are sworn to uphold?

Ought not every judge and every lawyer to be made to see that he may never deny or doubt that in this land every possible or conceivable governmental act, including all judicial decisions, as well as legislative fiats and executive orders, may be challenged as unconstitutional by anybody aggrieved (excepting only those whose rights inter sese have 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.

88. Letter from Mr. Moot.

Buffalo, N. Y., January 19th, 1916. My Dear Mr. Clarke:

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 Consol. idation 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 shali be 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.

Sincerely your friend,





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

89. Letter to Mr. Caffey.

January 19, 1916. Hon. Francis G. Caffey, Solicitor's Office, Department of Agriculture

Washington, D. C. My dear Colonel:

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 en. forcement 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,


$10. Letter from Mr. Caffey.

January 20, 1916. Dear Mr. Clarke:

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 leg. islation; 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

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