EDITORIAL DEPARTMENT
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LEGISLATION. ' ' A Review of Legislation of to the development of special organs for the amelioration and development of legal rules, the Year 1904—1905 " the annual address of it appears to me that the time has arrived for the President of the American Bar Association, a clearer limitation of the contents of law, and Henry St. George Tucker at its meeting at for the development of a theory of those per Narragansett Pier, last summer, which was suasive sources of law (including custom) in summarized in our September issue appears cases where there is an imperative call either in the American Law Review for Novemberfor a new rule or for the variation of an exist December (V. xxxix, p. 801 ) and American Lawyer (V. xiii, p. 469). ing rule. LEGISLATION. " Year-book of Legisla "The general conclusion, therefore, is that Custom is law when it can be held that the tion." Edited by Robert H. Whittlen, Socijudges are bound to enforce it. Though there • ology Librarian of the New York State Library. may be some difference of opinion possible as Contains (i ) Digest of Governors' Messages, to the moment when this can be said to be the (2) Index of Legislation, (3) Review of Legis case, I do not think there can be any differ lation by forty specialists from all parts of the ence of opinion on the point that judges are country. New York State Education Depart bound, not by any inherent intrinsic authority ment, Albany, 1905. MEDICAL JURISPRUDENCE. " Statutes of custom, but by virtue of their own practice. To the question why custom is law, no better Regulating Medical Practice," by Lewis Hochanswer can be given than that the judges treat heimer, Central Law Journal (V. Ixi, p. 424). PRACTICE (Expert Testimony). In the it as such. The custom of the people is law, in so far as it is law, by virtue of the custom November Albany Law Journal (V. Ixvii, p. 330) Albert S. Osborne writes of " Expert of the courts.' "The people are not, what the judges are, Testimony from the Standpoint of a Witness." an official organ. It seems to me not only He emphasizes the importance of a proper possible, but highly important, to distinguish marshaling of the facts by intelligent counsel, between what the judges do or may do, and the interference of the court in the preliminary what unorganized and unofficial groups within examination for the purpose of qualification, the community do or may do. It appears and the selection of State experts for a limited to me a right and important step in the direc time, as is the custom in England. He also tion of a sound theory to hold that popular calls attention to the important distinction custom enters the law, if not through prece between mere opinion evidence and rational dent, at least through judicial practice; that expert testimony that may be understood and precedent also becomes law by virtue of judi weighed by court and jury, and he criticises cial practice, and that in consequence the a disposition to construe the rules of evidence authority of both popular custom and isolated so as to prevent examination of the reasons precedent find a common basis in the authority of expert testimony. of judicial practice. Whether that basis be PRACTICE (See Evidence). •ultimate or not is another question. In the PROPERTY (Conveyancing). The rela view I hold of the matter, we have reached a tion of " The Statute of Uses and the Modern stage in our legal history when a theory of cus Deed," are considered in the December Mich tomary law inevitably leads us on to a theory igan Law Review (V. iv, p. 109) by John R. of judicial practice in general. Such a theory, Rood who asks in opening, " to what extent however, cannot be dealt with in the present does the modern conveyance of estates in article, since it would imply, inter alia, an land in the United States by deed derive its account of the prerogatives and limitations validity from the English Statute of Uses." of the judicial office, and of the relation of the He concludes as follows: judges to the Sovereign, the State, and the "Questions concerning the necessity of a People." seal and words of limitation as required at JURISPRUDENCE. " Liberty of Contract," common law to pass a fee by deed, are still by O. H. Myrick, Central Law Journal (V. Ixi, met occasionally in modern cases, and seals and the word heirs seem to be still essential in P- 483 )•
