THE ELASTICITY OF THE CONSTITUTION ing philosophy no longer recommended itself to a changed world, but even because mere modes of thought had become modified. Thus, to mention but one instance, the nar row, formal logic, on which the old rule was . based that an accord and satisfaction made between a creditor and a third party would not avail the debtor as a defense in an action on the original debt, no longer commended itself to a sense of justice emancipated from scholasticism, and has been abandoned or at least much modified. (Leavitt v. Morrow, 6 Ohio St. 71; see also Wellington v. Kelly, 84 N. Y. 543, 547.) It would be easy to find many more examples of a similar order. In all probability, a majority of judges now occupying seats in our various courts of last resort are still imbued with the doctrine of individualism and the allied notions that were all but universal a generation ago. Ours is a cautious and conservative pro fession, and rightfully glories in that fact, but reluctance to except new teachings may be carried to excess. Sir Henry Maine's "Ancient Law" has presumably been read by every law student during the last twenty-
21
five years. But from the bench, we still hear about the "social contract," as if that figment of philosophical imagination were a self-evident truth. (Nunnemacher v. State, 129 Wis. 190.) As younger men succeed to the bench, however, it is reason ably certain that the more modern ideas will come in with them, and have their influence upon the future development of the law. Even at the present day, Mr. Justice Holmes is able to declare that "the fourteenth amendment does not enact Mr. Herbert Spencer's Social Statics. " (Lochner v. New York, 198 U. S. 45, dissenting opin ion.) I have tried to show in the above paragraphs that a modification of our inter pretation of the Constitution in accordance with modern beliefs is possible without any violent deviation from accepted principles of construction. The recent alarm about a threatened stretching and perverting of that venerable instrument is a baseless fear, as regards other features as well as the particular instance exhibited in this article. SACRAMENTO, CAL., December, 1907.
