directly in the face of the Constitution.

If the divorce has force and effect in Connecticut it must have the same force and effect elsewhere. In this country by the terms of the Constitution and the interpretation given it by the Supreme Court in Creswill v. Knights of Pythias and the other cases cited we are fortunate enough to possess a court of the Conflict of Laws as far at least, as the question of jurisdiction is concerned.

In this we have a model for a world court, and there are some of us who still hope that the time will come when such an institution will arise. When that time comes, no matter at how distant a date, I fondly believe it will have a starting point for dealing with questions of both public and private international law in the decisions of our greatest court. I cannot think that the court will persist in the doctrine enunciated in Haddock v. Haddock, thus throwing over its great opportunity to render inestimable service to this country and perhaps ultimately to the world at large.

I will not believe until I am forced to do so, that in order to uphold a decision made by a majority of one vote it will persist in doctrines which leave in a cloud of uncertainty and doubt the most sacred of human relationships.. The law is something above and beyond even courts; judges and lawyers are but its ministers, and while it is true that courts are the only authorized agents to declare the law and so as a practical matter their decrees are the law, yet if on subsequent reflection a decision is clearly wrong, it is the duty of the court to remedy the mistake. Law in its last analysis is right reason and justice. and the squaring of decisions with this ideal, when a great principle is involved, takes precedence even over the doctrine of stare decisis. MORTON L. LEWIS.

Worcester, Mass.

THE MULTIPLICITY OF LAWS AND THE INTERPRETATION OF STATUTES BY COURTS-VIEWS OF MR. JUSTICE HUGHES.-Mr. Justice Hughes of the Supreme Court of the United States delivered in January, before the New York State Bar Association a notable address upon the Development of American Law. He noted the rage for lawmaking in this day and country and suggested some remedies. He said:

"In the mere multiplication of laws, when this is considered relatively to the growth of the country, there is nothing novel. This is an ancient grievance, and the significance of its continuance lies in the showing of the reluctance of democracy to forego legislative opportunities in the interest of simplicity and efficiency. I see no prospect of remedying the evil of needless multiplicity until in the place of merely general lamentations and futile inveighing against "too much law," enlightened opinion shall aim at securing improvement in those cases in which the mischief is especially prominent and some measure of relief is not wholly impracticable: For example (1) by increasing restrictions against special and private legislation not only through constitutional provisions where these are appropriate, but by changes in the rules of legislative bodies with respect to the consideration of private bills; (2) by the development in local communities of the sense of civic responsibility which will lead to intrusting each municipality with the care of its purely local affairs under rules of its own making: (3) by seeking to deal with matters of general concern, though within State power, through uniform State laws not only enacted but maintained as such both by

force of the public judgment and by the efforts of the Bench to avoid conflicting interpretations, and (4) by seeking to provide a simple judicial procedure which shall not be a legislative patchwork. We are apt to be suspicious of everything but generalizations, and we find it hard to agree on the details of constructive enterprise. But gains are always possible through a wise dircetion of effort, and if Legislatures are relieved of unnecessary burdens there will be opportunity for increased care in formulating and adopting new laws."

He spoke of the Judicial function to interpret both constitutions and statutes, and how legislative activity is every day raising questions involving not simply the constitutional adjustment of national and State power, but also the application of the historic clauses of our Bill of Rights securing life, liberty and property. He said:

"Here also our system is under an increased strain as efforts to impose new obligations are brought to the constitutional test. In view of the impossibility of comprehensive definition of the content of the great guaranties of due process and equal protection, and of the necessity for what Mr. Justice Miller called the 'gradual process of judicial inclusion and exclusion, as the cases presented for decision require,' there is peculiar danger of defective generalization in a critical estimate of results. For a fair view of judicial work in this field it must be judged in its entirety and without losing sight of the broad range of legislative discretion which is every day recognized despite constant efforts to induce judicial decision upon matters which are essentially mere questions of legislative expediency and over which the courts have no constitutional authority. Even with respect to procedure, which is of the essence of due process, it has repeatedly been held that there was no intention by the adoption of the Fourteenth Amendment to confine State practice to archaic forms. For, as Mr. Justice Moody said in Twining v. New Jersey, if that were so, 'the procedure of the first half of the seventeenth century would be fastened upon the Amercian jurisprudence like a straight jacket, only to be unloosed by constitutional amendment,' and that, he continued, quoting from Mr Justice Matthews in Hurtado v. California, would be 'to deny every quality of the law but its age, and to render it incapable of progress or improvement.' Thus it has been found, for example, that there was nothing in the guaranty of due process of law contained in the Fourteenth Amendment which required a State to proceed by indictment by a grand jury (instead of by information) or by trial by a petit jury of twelve persons in prosecutions for infamous crimes, or from dispensing with the exception from compulsory self-incrimination. And in the operation of this amendment according to our established constitutional doctrine as a restriction upon the enactment of substantive legislation, it is manifest that the prohibition was not intended to override legislative action by the views of judges as to its wisdom. The amendment was the affirmation of individual rights deemed to be fundamental. It was incorporated in the constitution with full knowledge of the judicial duty to apply the supreme law in the decision of controversies. What was thus sought was not a privilege to deny the legislative authority to enact reasonable measures for the protection of the safety, health, morals and welfare of the people, not to make improvement or rational experimentation impossible, but to preserve and enforce the primary and fundamental conceptions of justice which demand proper notice and opportunity to be heard before a competent tribunal in advance of condemnation, immunity from the confiscation of property, and, with re

CURRENT TOPICS AND NOTES.

spect to every department of government, freedom from the exercise of purely arbitrary power. The perpetuity of this judicial function characteristic of our system, in my judgment, lies with the courts themWith the alternative of legislaselves rather than with their critics. tive power, uncontrolled no matter how indulged, the people have preIt is not a ferred the interposition of the judicial scrutiny in order to conserve what have been deemed to be the essentials of liberty. function likely to be disturbed so long as judges in the discharge of their delicate and difficult duty exhibit a profound knowledge and accurate appreciation of the facts of commercial and industrial activity, and by their intelligence and fidelity in the application of the constitution according to its true intent commend its guaranties to the judgment of a fair-minded people, jealous alike of public rights and individual oppor tunities.

Then, as to the construction of statutes generally, he said:

"I have spoken of constitutional grants and restrictions, but quite apart from these the development of our law is making very heavy demands upon the courts as the organs of the interpretation of statutes. Many forget how unnecessary is the judicial work to the carrying out I like to think of the courts as in the of any legislative program. truest sense the expert agents of democracy, expressing deliberate judgWe are conment under conditions essential to stability, and therefore in their proper action the necessary instrumentalities of progress. In prostantly reminded of the fact that legislation, even when making important changes, is new only in part. It cannot escape its roots. viding what is new, it also brings forward what is old. Concepts long familiar in the law are introduced into new statutes; language can hardly be used otherwise, despite crudities in drafting, and in nearly every line is a connection with the past which demands the expert judicial interpreter. And further, what may seem at the time to be an abrupt or catastrophic change takes ultimately its place in legal history, when causes and effects are better understood, as a natural evolution. It is undoubtedly the duty of the courts to construe legislation according to the intent of the Legislature. But the question remains. What is the intent of the Legislature? The man in the street will tell you at once what it is, but when you put the case to him in its details he hesitates. What seemed clear becomes doubtful as the particular application to concrete facts is faced. Much that arises in the controversies which the courts must decide was not or could not have been foreseen, and actual intent to deal with it was lacking. There is no one who has had anything to do with legislation but knows how various are the views inducing votes, and it is recognized that it would be highly unsafe to take even expression in debate as representing the opinions of others whose concurrence was necessary to the passage of the measure. The intent of the Legislature is sometimes little more than a useful legal fiction, save as it describes in a general way certain outstanding Moreover legispurposes which no one disputes, but which are frequently of little aid in dealing with the precise points presented in litigation. lative ambiguity may at times not be wholly unintentional. to be forgotten that important legislation sometimes shows the effect of compromises which have been induced by exigencies in its progress, and phrases with a convenient vagueness are referred to the courts for appropriate delimitation, each group interested in the measure claiming Legislation does not that the language adopted embodies its views. execute itself; very rarely does it fully explain itself and with the legislative word, in order to make it effective, must go the judicial judgment. How important this work is in connection with recent legislation is at

It is not

once apparent. For it is through the courts that consistency and symmetry will be given to new departments of law.

"I have said that every statute shows its connection with the past and contains in its language references to familiar legal concepts, but the work of interpretation cannot faithfully be performed in a technical spirit which would sacrifice the growing substance of the law to a lifeless formalism; nor can it in linking the future with the past ignore the evident purpose of many legislative changes. Thus, in the case of our Uniform State Laws, formulated and adopted with the purpose of unifying the commercial law of the country, nothing could be more lamentable than to treat the Uniform Act as an outgrowth of the separate law of the State and through conflicting interpretations to create a new diversity in place of the desired unity. It is an old maxim that in construing statutes the court should consider the old law, the mischief and the remedy. The maxim has become so hackneyed that its fine quality is often not perceived. It calls for a statesmanlike appreciation of past, present and future through which alone the judge can discharge his responsibilities as the interpreter of legislation in the expanding life of democracy. In judicial tribunals the Legislature is happily, though somewhat mythically, personified as possessed of all accessible information, learned in the law of the past, wise to the point of infallibility in matters of legislative discretion, generally using legal language with legal acumen and certainty and imbued with the spirit of unfailing consistency. The intent of this ideal legislative intelligence is found in the words it employs, and when found must be faithfully applied; and the general success of the courts in this arduous endeavor is shown by the fact that although the Legislature is always free to repudiate any misconstruction of its purpose, such action is rarely taken."

TENDENCIES IN LEGISLATION AFFECTING THE COURTS.-Mr. Justice Hughes passed to two observable tendencies in legislation, which are opposed to a proper conception of the function of the courts. The first is the tendency to assign to the courts administrative duties which do not belong to them, and sometimes judges are denied appropriate authority.

"Legislation of the first sort undoubtedly arises from distrust of powerful administrative agencies; it shows a desire to escape their authority and to have the judgment of judicial tribunals, with whose standards the public is familiar, in the final decision of difficult administrative problems. It seems to me to be the wrong way to reach the right result. The only reason for the creation of the new administrative instrumentalities, which appear to present government in a new phase, is the complexity of the facts with which government undertakes to deal and the necessity, if they are wisely dealt with, for the continuous and expert attention of a body exclusively concerned with the particular subject. To put upon the courts the burden of considering the details of administrative problems would be to overwhelm them; but for the courts to revise and rescind administrative action without a competent and close study of all the pertinent facts would be not only to destroy the effectiveness of the administrative agencies, but also seriously to impair the confidence reposed in judicial tribunals. It cannot be too strongly insisted that if we are to have these important administrative instrumentalities properly perform their duty, they should stand on their own footing, and that the public should realize that their safeguard is not in injecting the courts into the work of administration, to the con

fusion of both, but in maintaining an enlightened policy and in insisting upon proper standards of official conduct. The courts cannot be substituted for administrative agencies; nor, as I believe, is it to the ultimate advantage of the community to divide between them the responsibility for purely administrative action.

"This is not to say that the courts do not have a very important function in connection with the work of administrative commissions. These bodies exercise prescribed powers, and the limits of these powers, as well as constitutional restrictions, must be defined and maintained by judicial tribunals. There is thus interposed one of the most important safeguards of the community against all efforts on the part of administrative agents to draw to themselves powers not conferred, and on the other hand, the appropriate demand, intelligently enforced for the proper execution of the law, does not in any way sacrifice administrative efficiency. Rather it tends to conserve such efficiency by avoiding the reactions which inevitably follow abuses of authority. There is also apparent at times the tendency, in a desire for the play of administrative discretion, to preserve opportunities for arbitrary action without responsibility. The requirement of a fair hearing, of action upon evidence, of a disclosure of the basis of action that all parties interested may have suitable opportunity to challenge it, in no way way trammels the just administrator who is loyal to the standards of democracy, but are very important safeguards against the development of bureaucratic despotism under democratic forms."

THE EFFORT TO MAKE A JUDGE A NONENTITY.-Mr. Justice Hughes next notices what he describes as legislative efforts to deny to judges the authority necessary for the efficient discharge of judicial duty. He says:

"In some jurisdictions the freedom of the judge in instructing the jury is very considerably curtailed in a manner which betrays a regrettable distrust. This of course carries the lesson of the extreme importance of such conduct on the part of our judges as will commend their office to the community they serve. But I venture to say that no intelligent citizen has ever taken part as a juryman in a trial over which presided a thoroughly competent judge, who swiftly, fairly and firmly applied the law, extricating the essential merits of the controversy from the confusing details of testimony and argument, without profound respect for the expert knowledge and trained capacity which successfully meets a test so severe. There can be no respect for the law without competent administration, and there can be no competent administration without adequate power. We shall never rise to our opportunities in this country and secure a proper discharge of the public business until we get over our dislike of experts; and the difficulties in the way of needed improvements in the administration of justice will not be overcome by tying the hands of those most competent to deal with them."

The common-law idea of a trial by jury which the founders of our government incorporated with our constitution and which is copied in the constitutions of all the states was not twelve men alone, but twelve men guided and advised by a judge. This idea has never been departed from in Great Britain or its colonies, and in all the courts of the United States, ever since they were organ