and crossed over the defendant's land to the non-riparian land of the plaintiff. The plaintiff, being thus deprived of the fertilizing effect of the water, seeks damages. Held, that he may recover. Thompson v. New Haven Water Works, 86 Atl. 585 (Conn.). For a discussion of the principles involved, see NOTES, p. 476. BOOK REVIEWS. CERTAINTY AND JUSTICE. By Frederick R. Coudert. New York and London: D. Appleton and Company. 1913. pp. vii, 320. This book is a series of eleven essays, nine of them contributed to various legal periodicals during the last ten years, and two now printed for the first time. Despite the circumstances of their first appearance, the essays constitute a well-considered and homogeneous body of thinking on the topic indicated by the general title. Mr. Coudert brings to the age-long discussion of the importance of certainty in the administration of justice an abundance of apt and interesting illustrative material, gathered from a wide experience as a practitioner, a well-trained and thoughtful reflection not only upon his own experience and that of the American bar, but also upon a familiarity with the law and legal machinery of continental Europe and particularly of France. Indeed one of the most obvious morals of the book is the value which an acquaintance with the modern civil law of continental Europe possesses for the active practitioner, and even more for the thoughtful jurist and legal reformer. Mr. Coudert is all of these, and his contribution to the problems of legal reform is everywhere enhanced in importance by his familiarity with the achievements of the other great legal system of Western civilization. The first three essays of the book set forth its central thesis — that our day demands a greater flexibility in the administration of justice than has been possible to the courts under a somewhat undiscriminating devotion to the ideal of certainty as formulated in the rule of stare decisis. He favors what he would call a liberal interpretation of both the unwritten and the written law, and especially the provisions of the Constitution. He is willing to trust the task of this interpretation to a thoroughly trained and professionally high-minded bench and bar, learned not only in the more definite legal lore which constitutes their professional equipment, but also in the traditions of their calling and the ideals therein formulated. In the hands of such a bench and bar a decreasing regard for precedent qua precedent might well be replaced by an increasing familiarity with the social and economic ends which the administration of justice is, after all, only a means of achieving. Mr. Coudert is no doubt right in believing that professional training and idealism, giving us an adequately prepared bench and bar, are our surest guaranties of an efficient administration of justice. On the other hand, it seems unfortunate that his analysis of the fields in which certainty is desirable and those in which the very nature of the subject-matter makes rigid rules unworkable has not been more thorough-going. The real antithesis in juristic thought is not between certainty and justice, but between the field of rule and that of discretion. Justice sometimes demands a certain rule; at other times it demands the possibility of a judicial discretion regulated only by a proper training in the processes of judicial thinking, and by a proper education preparing the administrator to appreciate the social ends which will be affected by the wisdom or unwisdom of his decision. To be more specific, in the fields of property and commercial dealings, certainty, a definite and ascertainable rule by which men can plan for future transactions, is the paramount desideratum. On the other hand, in those fields of law involving problems of human conduct and personal relations, in questions, for example, of tort, of divorce, of fiduciary relations, such as trusts or agency, free play must be given to the discretion of the trained administrator. It is in the delimitation of these two fields, both of them essential in the administration of justice, that the work surely lies which at present most needs to be done. It is unfortunate, then, that any antithesis should even be suggested between certainty and justice, though the antithesis lies rather in the title than in the content of Mr. Coudert's thoughtful and suggestive book. Nevertheless it must be said that the apparent approval with which Mr. Coudert regards the alteration, by the indirect method of interpretation, of definitely formulated rules such as make up our written constitutions is to be regretted. The courts who by any spurious interpretation change a definite rule while ostensibly paying homage to it are doing a serious disservice to the cause of justice, as well as to that certainty which the lawyer of an earlier generation prized as the most valuable element of the law. Where a change ought to be made, it is better that the judicial branch of the government be patient until the popular demand has formulated itself with sufficient definiteness and grown to sufficient earnestness to produce a direct and thorough-going amendment by legislation, rather than that it unsettle the popular mind as to the efficacy of any form of words, however definite, to lay down a rule of law, by forcing upon such form of words in any particular instance an interpretation which in fairness it cannot be said it was intended by its framers to bear. The popular mind has already too deeply rooted in it the impression that it is the highest exhibition of legal skill to drive a coach and four through gaps in the most careful devices of language, - hence no doubt a large part of the popular distrust which Mr. Coudert recognizes to exist against his profession. Pretty obviously the remedy for this distrust is not to use this astuteness to achieve presently popular ends by means which the ethical sense of the community cannot permanently approve. The public, though they may be gratified to find their wishes served by such a display of legal acumen, cannot but in the long run come to feel that this same acumen may sometime be used to frustrate the popular will as embodied in enactments which they wish enforced with literal strictness. Indeed this is the state of mind which now exists, and no use of powers of interpretation will permanently alter it. Mr. Coudert suggests much more accurately the real remedy for the popular distrust of the legal profession when he emphasizes the need of high ideals and adequate education for the lawyer. With the administration of justice in the hands of a bench and bar thus properly prepared, there will be no need for the frequent suggestion that rules or documents which seem to hamper the development of a modern and rapidly changing society may be nullified by any process of indirection. С. А. Н. A TREATISE ON THE LAW OF CORPORATIONS HAVING A CAPITAL STOCK. BY William W. Cook. Seventh Edition. Boston: Little, Brown, and Com pany. 1913. 5 volumes. pp. lxxii, 4984. In reviewing the most recent edition of a book which, like Cook on Corporations, has been steadily developed through many previous editions, it is unnecessary to describe in detail the general characteristics which the latest edition shares with those that have gone before. Any lawyer who has had to do in recent years with corporations has known that he could not be sure that he had found all the authorities on any point of corporation law until he had consulted Mr. Cook's book. There he would find, under the appropriate section, nearly if not quite all the authorities from every jurisdiction, not only cited, but probably stated in some detail. Such a treatise even though the statement of cases be confined as closely as possible to long notes is not the best form in which to present forcefully and clearly the theory of corporation law, to weigh its conflicting decisions, and to unify the whole; but it is an excellent method of making accessible to the practicing lawyer the exact judicial opinion for which he is seeking, without compelling him to read the many unstated cases cited in an encyclopedia. For this reason the sixth edition of Cook on Corporations has been found to be very useful, and in the same field the seventh edition promises to surpass all its predecessors. As stated in the preface, the present edition contains about sixty thousand citations of cases, about six thousand of which have been decided in the five years which have passed since the publication of the previous edition. Except in a few instances, these decisions have not caused Mr. Cook to change materially his statement of the law; but their mere insertion in the text and notes, has added to the present edition about three hundred and sixty-five pages. This new matter is scattered almost evenly over the whole field covered by the three thousand seven hundred pages of the previous edition. In a few instances a change has been made in the statement of the law, or new statements have been made, indicated sometimes by changed sub-headings in the very complete analysis contained in the chapter headings. The more noticeable changes and additions occur in relation to the following subjects: various ultra vires acts; criminal liability of promoters for fraud; certain elements in contracts for sale of stock and in the liabilities of brokers; amendment of charters; restraint of trade and monopolies; voting trusts; dissolution; fraud by majority stockholders; authority of corporate officers and agents; publicservice companies and various matters of procedure. To comment upon the changes in detail is beyond the scope of this review. It is sufficient to say that the new matter is handled so similarly to the old, and inserted so carefully in the right place, that the reader could hardly detect it if it were not for the dates of the citations of the cases. In the last volume of the present edition there have been inserted for the first time ninety-one forms, occupying some two hundred pages. These forms do not purport to cover the whole field of ordinary practice; but they do contain copies of instruments of known value which could not easily be obtained by the average lawyers, as for example, the purposes and by-laws of the United States Steel Corporation; the organization of Chicago Street Railway Trust; the underwriting agreement in connection with Union Pacific four per cent twenty-year convertible bonds; and the mortgage of the Great Northern Railway in 1911. These forms are a most valuable collection. This review would not be complete without a reference to the introduction which contains a second presentation of Mr. Cook's theory that if government ownership of railroads is to be avoided, the federal government should form a gigantic holding company to acquire gradually the stock of all the railroads of the country. The stock of this holding company should pay three per cent dividends per annum and be sold to the public, and the directors should be elected by the Interstate Commerce Commission, or possibly by the stockholders under restrictions that would prevent a few large stockholders from obtaining control. This theory was presented in the introduction to the sixth edition, but the changes made in the later presentation together with the criticism by Mr. Acworth, a leading English railroad authority and member of the Vice Regal Commission on Irish Railways, and Mr. Cook's reply thereto, make this second presentation - which is very interesting in itself— the more interesting to those who have read the former exposition. P. K. ELEMENTARY PRINCIPLES OF THE ROMAN PRIVATE LAW. By W. W. Buckland, M. A., Fellow and Tutor of Gonville and Caius College, Cambridge. Cambridge: University Press. 1912. pp. viii, 419. This is a new type of elementary book on Roman law. Indeed it is not elementary in the sense that has been made too familiar by the general run of manuals and compendiums in English. Instead it is the type of elementary book which may be written only by one who has mastered his subject and may be used only by one who desires to study the problems which his subject raises, and not merely to pass a conventional elementary examination. In form the book is a running commentary on Gaius and the Institutes; not in the usual manner of such commentaries, however, but in the form of stating the problems that grow out of the texts, and the difficulties involved in reconstructing the institutions and doctrines of the classical Roman law on the basis thereof. As stated by the author, the purpose is "to discuss institutions rather than to state rules, to suggest and stimulate rather than to inform." This purpose is well carried out. The teacher familiar with the controversies which continental scholars have been raising, especially in their attempts to recover the law of the third century from the palimpsests, as it were, which interpolations in the Digest have made of the excerpts from the classical jurists, will find that the problems that are worth while have been selected with much judgment and have been stated critically. He will find, moreover, that the author has thought about them and so has been able to give an independent value to his way of raising them. If there are still those who study law by themselves, as many of us had to do substantially in the past, they could make no mistake in taking such a book after the Institutes and Gaius, and attempting to wrestle with the questions which it suggests by the aid of the Digest and the references to the modern books. But in such a subject as Roman law students of this sort are likely to be teachers. It is probable, therefore, that the book will be used more by teachers than by students. The tendency of recent scholarship on the Continent is in the direction of historical and institutional study of the Roman law prior to Justinian. We must not forget, however, that Justinian's law books were the materials upon which those wrought who built up our modern law and that the "gemeines Recht" of the eighteenth and nineteenth centuries which resulted has possibly more value for Anglo-American students because of its relation to comparative law. Study of the way in which the same problem is dealt with in the AngloAmerican common law, in the modern codes and in this common law of continental Europe, and comparison of the way in which the Roman law, as found in the Digest, has been developed into law for modern Europe with the way in which we are treating our classical common-law tradition, may possibly be as important and as valuable as reconstruction of the legal institutions of the days of the Antonines. Recently "Pandekten" have been pushed to one side in Germany and yet one may suspect that this study of the common law which culminated in the code may presently prove fruitful as a new common law develops on the basis thereof. At any rate it would seem desirable that instead of continuing to follow continental scholarship English and American students of Roman law devote at least part of their time to the body of doctrines based upon the Digest which underlies the law of all that part of the modern world which does not speak English. R. P. THE EYRE OF KENT, 6 and 7 EDWARD II, 1313-14, Volume III; being Volume VIII of the Year Book series of the Selden Society and Volume XXIX of its Proceedings. Edited by William Craddock Bolland. London: Bernard Quaritch. 1913. pp. lii, 242. Again we have an interesting and well-edited Year Book from competent hands. The cases are almost entirely concerned with land, and of direct interest to a student of the history of our land-law. Such incidental matters as repay inquiry are put before us in the painstaking introduction. The editor also considers the burgage "assize of fresh force." He works out from obscure sources such economic facts as the salary of the judges (£40 for a Chief Justice, and seldom paid) and of the clerks; and the cost of hares, rabbits, and capons. A hare, it seems, cost only half as much as a rabbit; a fowl only about half a good capon; and a rabbit rather more than a capon. He also explores the meaning of the mysterious word "eel" in the statute of Westminster I, and finds it no more occult than the somewhat disguised first syllable of aliud. Again the clever editing reminds us of Maitland; and we hope that the editor's farewell is not for long. There is many an unpublished Eyre roll; and Mr. Bolland has proved that the Eyre is quite as interesting to the legal historian as the bench itself. J. H. B. THE LAW AS A VOCATION. By Frederick J. Allen. Boston: The Vocation BANKS AND BANKING. By John D. Falconbridge. Second Edition. Toronto: BOYCOTTS AND THE LABOR STRUGGLE. By Harry W. Laidler. New York: GREAT JURISTS OF THE WORLD. Continental Legal History Series. Edited by Sir John Macdonell and Edward Manson. Boston: Little, Brown, and Company. 1914. pp. xxxii, 607. THE VALIDITY OF RATE REGULATIONS. By Robert P. Reeder. Philadelphia: T. and J. W. Johnson Co. 1914. pp. XV, 440. LAW RELATING TO THE COLONIES. By Sir Charles J. Tarring. Fourth Edition. London: Stevens and Haynes. 1913. pp. xxiv, 398. ESSAYS IN LEGAL HISTORY. Edited by Paul Vinogradoff. New York: Oxford University Press. 1913. pp. viii, 396. |