Page:Harvard Law Review Volume 9.djvu/493

JUDICIAL CONFLICT. 4^5 they are told by counsel that the judge who dissented is not only right, but that his opinion is abler and more logical by far than that of the majority of the court. If the law is so plainly on his side, how comes it that most of the judges are blind to the fact? Lawyers are not in the least surprised at all this. They are accus- tomed to see not only members of a single court divide upon ques- tion after question, but also a steady current of diverse opinion maintained from time to time between the courts of different States, as well as between appellate tribunals. State and Federal.^ Of course, for the most part these differences yield readily to explanation. In fact, it is easy to summarize the various subjects in respect to which a conflict of views may ordinarily be looked for. Courts, for example, naturally may differ in their conception of what " public policy " requires. They may fail to agree in laying down the extent to which a doctrine of recognized soundness and utility should be carried. So, too, the disposition of the individual judge, in suits involving a political question, is expected to lead him m a direction that favors the party with which he has been identified. We see courts of adjoining States at times diverging widely in their opinion as to the measure of an obhgation, in circumstances of fact precisely identical.^ 1 But see the remark of Lord Mansfield in Millar v. Taylor, 4 Burrows, 2395, that this was the first instance of a final difference of opinion in the court since he had sat there. He had sat twenty-three years. '• Every order, rule, judgment, and opinion has hitherto been unanimous,'^ said that great judge. " That unanimity never could have happened if we did not among ourselves communicate our sentiments with great free- dom ; if we did not form our judgments without any prepossession to first thoughts; if we were not always open to conviction, and ready to yield to each other's reasons." In some sense Mansfield, unconsciously enough, was thus paying tribute to his own great power of convincing the minds of other men. 2 A comparison of two opinions may sometimes afford the reader almost as much amusement as instruction. With the rapid growth in the building of railroads and manufacturing came the need of issuing corporation bonds. The question early arose as to what kind of a purported seal on a bond was sufficient to render it technically an instrument under seal. In Maine a company had printed a fac-simile of their seal in red on the face of the bond. The Supreme Court of that State pronounced it a legal seal : " The instruments under consideration bear upon their face the imprint in red ink of what purports to be a corporate seal. Here there is a substance affixed to the instrument more tenacious than wax or wafer, adopted and declared by the company to be their seal, and we know of no decision in this enlightened age which declares it to be otherwise." Woodman v. York & Cunberland R. R. Co , 50 Me. 543. The case was decided in i86r, the report of it published in 1865. If the reader will turn to Bates 7/. Railroad, 10 Allen, 252, decided in 1865, he will find a decision point blank the other way. In a later case, Hendee v. Pinkerton, 14 Allen, 387, Foster, J. says of it: "A fac-simile of the seal of a corporation printed with ink on the blank form of an