Page:The Green Bag (1889–1914), Volume 17.pdf/16

 A SCIENTIFIC SCHOOL OF LEGAL THOUGHT tion in contract, where at any rate the con tract is in writing; a man's signature, they say, should be binding; and eminent law yers, like Lord Mansfield, have agreed with them. The answer, familiar enough to lawyers, is based on the economic idea that something should not be required for noth ing — that dealings import exchange of things real and equivalent. A man may presently give away what he will, if creditors are not to suffer from the gift; but a man should not bind himself to give in the future, with the uncertainties of it. He knows the present and may give accordingly; to bind himself to a gift in the future might ruin him. This reasoning is of course un satisfactory to the merchants, on grounds peculiar to the need of rapid transfer of pecuniary interests. But one of the chief grounds of objection has, one is glad to say, been removed in the final overthrow of Chancellor Kent's doctrine of value; a creditor may now safely receive a negoti able instrument from his debtor, as security for a pre-existing debt. It is not necessary to try to discover a consideration to sup port the transfer; the merchants have pre vailed. After this there can be little ground of complaint against the rule requiring con sideration. The criminal law is a good field for the layman's criticism and yields at once its example. He sees that branch of the law breaking down under his own eyes, in what many laymen believe to be its failure to reach out an arm it ought to extend; an arm however, which long ago became with ered in the socket.1 It cannot strike as some would have it. Its blow was para1 What in effect was the injunction was in use in England long before the chancellor appro priated it. See Bigelow, History of Procedure, 192196; also the references in the Index of Piaciia Anglo-Normanmca, sub voce Injunction; Pollock and Maitland's History of English Law, ii, 593, 594. The writs in Placita Anglo-Normannica, 105, 159, prohibiting disturbance of men exercis ing their rights, have a familiar sound, as if of recent events.

lyzed for the most important of purposes, by self-imposed limitations of procedure; and now equity, which always had been required to keep its hands off the preserve, finds itself compelled not merely to lend, but to take, a hand in the business of keeping the public peace. And yet the criminal law has always professed to follow rights. And the profession was until well within the last century fairly carried out. There was no need of the injunction; the jury answered the purpose fairly well, even if in a some what tardy and indirect way. And thus the very idea of prevention was so far lost sight of in regard to crime that it came to be understood that criminal law could not work except in the one way of the jury. And parliaments and constitutions, as well as judges, learned the negative lesson in the same way. Now, in our day, under social conditions unknown until within our own memory, with social upheavals throughout the land, breaking up communications, inter rupting peaceful vocations, sometimes of the most solemn kind, and threatening not merely the peace but the very life of States, now at last, in the opinion of those most closely connected with peace and order, the judges, it is found that something must be done to replace the withered, dead hand of the criminal law. The past, with its stagnation, with its stifling and crushing out of courage and manhood, is not suffi cient for the day when men, under an im proved but still depressing social order, begin to assert themselves; and the best men stand aghast at the situation. The criminal law of Edward the First or of Charles the Second or of George the Third will not do for the 2oth century; that must be admitted. Still the criminal law has always sought, after its way, to protect men in their reason able pursuits, and, so far as any general policy is concerned, without attempting to force them into this or that way of carry ing them on, and so has professed to con form, and hitherto practically has conformed, to the theory in question. To-day, in times