THE LAW SCHOOLS AND THE COURTS course of society. Have the courts the same or a similar power, or are they strictly confined to the duty of applying established principles and rules to new cases as they arise, leaving the introduction of new principles to the legislature? Professor Sohm says that the Roman praetor in deal ing with rules of mere customary law was justified within certain limits in exercising his free discretion, but the authority of a lex was irrefragably binding upon him.1 Have our courts a similar discretion in regard to the common law? These ques tions and other similar questions which are suggested by the sentiment favoring changes in the law, whether under the name of a sociological jurisprudence or by whatever name they may be described, seem to me to be of deep importance. They call for careful study of the relations of the courts to the legislatures, and for a determination of the true provinces of written and unwritten laws, not as a ques tion of abstract jurisprudence, but as a concrete problem in the administration of justice in the United States. The impor tance of the subject was clearly recognized by Mr. James C. Carter, a lawyer whose opinion upon any subject connected with the law deserves respectful attention. In his will he gave a large sum of money to the President and Fellows of Harvard College, "which," he said, "I now wish may be applied to the establishment and mainte nance in the Law School of the University of a professorship of General Jurisprudence for the special cultivation and teaching of the distinctions between the provinces of the written and the unwritten law."2 One safe reliance of the courts upon this subject is an able and learned bar. General public opinion, which is of the highest value as a guide upon ordinary public ques tions, where it is clearly manifested, is misleading here. The average citizen is 1 Sohm, Institutes (Ledlie's trans.), 28. J Law: its Growth and Functions, Preface, viii.
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interested in good government. He looks for that result, and if it is attained, is com paratively indifferent as to how it is attained If a riot should break out, he desires that the mob shall be quelled and public order restored. It is practically immaterial to him whether the mob is put down by the police or by an injunction, that is, by the executive branch of the government or by the courts. The average citizen wishes to have the right to manage his private busi ness in his own way without interference or control by third persons. If the law grants him this right, he does not care whether it is conferred by statute or declared by the courts. But in the working of American constitutional government it is of supreme importance that each branch of the government shall at all times be prompt and vigorous in the discharge of the duties entrusted to it, and refrain from attempts to perform duties imposed by the constitution upon the other co8rdinate branches. The construction of statutes, the just enforcement of constitutional enact ments of the legislative branch of the gov ernment, seem to me to be likely in the future to put the wisdom and firmness of the American judiciary, both state and federal, to a severe and searching test. The law schools can do no better service than by sending out young men well qualified to aid the courts in performing this important part of their. work. There is another reason why this subject is important. Within a few years after graduation many of the law students will be members of the legislatures in the various states. A large share of responsibility for the draftsmanship shown in the statutes rests upon the lawyers who are members of a legislative body. In regard to those statutes which modify or affect the com mon law, almost the entire responsibility, both as to substance and form, rests upon the lawyers in the legislatures. If such a statute miscarries by reason of want of knowledge of the common law or want of
