sions that a precedent legally binds only the parties thereto inter esse in respect of the very subject involved therein and that the only proper use of precedents in courts is to treat them as more or less valuable evidence of what the law is? An answer to this question may be obtained by some further consideration of the Court of Appeals opinion.

§ 27. The Court of Appeals did not use the quoted reasons as ground for holding the Williams decision to have been erroneous, but as ground for holding that precedent distinguishable from the Charles Schweinler Press case. The court did not disagree with the Appellate Division minority opinion (§ 3 ante) on the point that the Williams decision was a binding adjudication if undistinguishable from the Press case, but on the point that it was distinguishable. It left open the question whether the Williams decision would have been binding if it could not be distinguished. This is shown by the following paragraph of the opinion which immediately precedes the part quoted above:

"Lastly, it is urged that whatever might be our original views concerning this statute, our decision in People v. Williams (189 N. Y. 131) is an adjudication which ought to bind us to the conclusion that it is unconstitutional. While it may be that this argument is not without an apparent and superficial foundation and ought to be fairly met, I think that a full consideration of the Williams case and of the present one will show that they may be really and substantially differentiated and that we should not be and are not committed by what was said and decided in the former to the view that the legislature had no power to adopt the present statute."

$28. The conception of the differentiation of precedents which was held by the Appellate Division minority judges and which heretofore has usually been held by judges and lawyers is that a precedent is undistinguishable from a later case if the facts contained in the record of the precedent and the questions of law necessarily decided by the judgment of the precedent (whether discussed in its opinion or not) are substantially the same as the facts and questions of law presented by the record of the later case. Rather than decide

the question whether the Williams precedent was a binding adjudication the Court of Appeals changed the differentiation concept. What was the effect of resorting to this device of obviously dubious propriety? Read attentively, first, the quotation from the opinion in § 27 and then read again the quotation in § 25 and consider what the court really did. Did the court really differentiate the Williams case from the Press case? Did it not rather decide that the Williams case was not binding as an adjudication? Was not the pretended differentiation a mere sham, barely sufficient to hide from the court itself what it was doing, but easily seen through by anybody else who focuses his attention on it?

§ 29. We have, then, in the police power precedents exemplifications of errors which amply justify a strong feeling of discontent in the hearts of the people. And we have in the Charles Schweinler Press case a clear presentation of the underlying cause of the errors. False and unconstitutional habits of thinking about precedents, bearing the hall-marks of a superstition, fetter absolutely the minds of some of the judges, as in the case of the Appellate Division minority (§ 3 ante), and lead other judges of our highest courts (§§ 25-28 ante) into casuistry and self-deception.

§ 30. Examples of the ill effects of the mind-fettering and mind-deluding stare decisis attitude of mind of our courts are not confined to police power precedents or to cases involving constitutional questions. Similar examples involving interpretations of other statutes and of the unwritten or customary laws might be cited ad libitum.

§ 31. Is it not then evident that the courts need help to enable them to perform their high duties to the satisfaction of all the people, and that if these proposals are given the form of a statutory declaration of law the courts will have precisely the help which they need?

IV.

PROPOSAL FOR AN AMENDMENT OF THE JUDICIAL CODE OF THE UNITED STATES AND FOR A REPEAL OF CERTAIN SECTIONS IN THE FEDERAL RESERVE ACT AND IN THE CLAYTON ANTI-TRUST ACT.

§ 32. Mr. Caffey's letter (§ 10 ante) shows that Congress is falling into a habit of inserting in present day bills a section identical with that now in the Cotton Futures bill for which a substitute is proposed in § 9 ante.

§ 33. This indicates that the first consideration of the subject in Congress ought to be by the Judiciary Committees of the House and Senate, so that, if dealt with legislatively at all, the subject may be dealt with generally instead of in each particular bill as it comes along.

34. It is submitted that for the reasons already stated the Judicial Code of the United States (36 Stat., 1087) ought to be amended by the addition of two new sections; one reading in substantial conformity with one or other of the alternatives proposed in the letter to Mr. Rodenbeck (§ 1 ante); and the other reading in substantial conformity with the substitute for section 23 of the Cotton Futures bill proposed in the letter to Mr. Caffey (§ 9 ante); also that § 29 of the Federal Reserve Act (38 Stat., 251, 275) and § 26 of the Clayton Anti-Trust Act (38 Stat., 730, 740) ought to be repealed.

$35. The enactment of this proposal in the Judicial Code will give to the Supreme Court of the United States occasions and opportunities for reviewing the precedents decided by that court, for estimating in the light of the advanced knowledge of the present day, their value as evidence of the law, and perhaps for discarding and scrapping some of them because of inconsistency with constitutional principles which were overlooked at the times the precedents

were decided and which at those times were not so well understood by judges and lawyers as they are now. See for example, the precedents cited or referred to in the dissenting opinion of Mr. Justice Holmes and in the majority opinion of Mr. Justice Harlan in Kuhn v. Fairmont Coal Co., § 3 ante.

§ 36. The laws of enforceable human conduct and knowledge of those laws are different things. No court has constitutional authority to make or change the laws. But the process of adjudicating an endless procession of lawsuits, one by one, may result in an enlargement of the field of knowledge of the laws. To insure that useful and desirable result it is necessary that erroneous interpretations of the laws should be identified and rendered innocuous by confining their evil effects to those who have already suffered from them. Otherwise the result of the adjudication process will surely not be true knowledge, but a false and misleading semblance of it destructive of the rights of some individual men and provocative of a general discontent and unrest which may do incalculable damage to the dearest interests of all the people. By confining courts to their constitutional functions we shall have in the law reports better, because truer, information as to what the laws are, and legislators will have in the law reports, in a clearly developed way, the precise points in respect of which the laws need amendment, and will so be better able to discharge their functions. SAMUEL B. CLARKE,

NEW YORK CITY.

THOMAS LORD ERSKINE.

"Nostrae Eloquentiae Forensis Facile Princeps."

There is no marble monument to Erskine's memory, nor any mural inscription to celebrate his genius and public services; but the collection of his speeches will preserve his name as long as the English language endures.-Lord Campbell.

In that golden age of the English bar, embracing the period covering the latter part of the eighteenth, and the earlier part of the nineteenth century, there was produced no figure more spectacular,-none more worthy of emulation by the lawyer of the twentieth century, than Thomas Lord Erskine, Lord Chancellor of England. Lord Campbell has pronounced him "the greatest advocate in ancient or modern times," being not only superb in the handling of facts before a jury, but equally as efficient in presenting the law of the case to the judges on the bench.

The object of this sketch is to present an analysis of the character of Lord Erskine; to outline some of the influences which shaped his career, and to draw some lessons therefrom; to inculcate the principles which guided him, and which he taught. He, however, is best illustrated by his speeches. In order, therefore, to properly appreciate and comprehend his mighty powers, passages from some of his most forceful and illuminating efforts are here reproduced, with appropriate comments and criticisms thereon. The converging rays of all the eloquence of antiquity seem to have centered and focused in him, and there re-distributed with no less lustre and brilliance. His speeches are models of classic oratory, and, in the words of Lord Camp- ·