Page:The Green Bag (1889–1914), Volume 20.pdf/203

 The Green Bag PUBLISHED MONTHLY AT 14.00 PER ANNUM. SINGLE NUMBERS 50 CENTS. Communications in regard to the contents of the Magazine should be addressed to the Editor, S. R. WRIGHTINGTON, 31 State Street, Boston, Mass. The Editor will be glad to receive contributions of articles of moderate length upon subjects of interest to the profession; also anything in the way of legal antiquities, facet/a, and anecdotes.

JAMES BRADLEY THAYER

ESTABLISHED LAW

, The publication of the collection of essays by the late Professor Thayer, which we have deemed deserving of especial notice in this issue, will recall to his many former pupils a grateful memory of that scholarly gentleman which time cannot efface, and the editor wel comes an opportunity to acknowledge his personal indebtedness to the patience and sympathy of his old instructor. Interest in this volume will be enhanced by the knowledge that its accurate annotations are the loving tribute of the author's son, Mr. Ezra R. Thayer of Boston.

The first part of Judge Sharswood's little book on Legal Ethics attempts to define the duty of the lawyer to the public and devotes much time to what should be his attitude as a legislator or as a judge. Among other topics discussed is a clear and logical argument in favor of the doctrine of stare decisis, which might be read with profit by those who, to day, are trying to force upon our courts the most important duties of government and who urge that when our legislators fail to properly reflect progressive popular sentiment, or on the other hand progress faster than the judges deem wise, the courts should mold the law according to their views by means of a subtle refinement of precedents. Judge Sharswood insists that certainty is of the greatest importance in business dealings and that this is impossible if the determination of law is to be made after the event by the court that hears the cause. Judicial legislation, he says, is retrospective and much worse than legisla tive retrospection because it is " invariably the precursor of uncertainty and confusion." "A decision in conformity to established pre cedents is the mother of repose on that subject; but one that departs from them throws the professional mind at sea without chart or compass. The cautious counsellor will be compelled to say to his client that he cannot advise. One cause is the general uncertainty to which it leads. Men will persuade them selves easily, when it is their interest to be persuaded, that if one well-established rule has been overthrown, another, believed to be quite as wrong, and perhaps not so well forti fied by time and subsequent cases, may share the same fate. Shall counsel risk advising his client not to prosecute his claim or defence, when another bolder than he, may moot the point and conduct another cause resting upon

A JUDICIAL ASSOCIATION The appellate and nisi prius judges of Mis souri have formed an association for the consideration of reforms in practice. The im portance of this will hardly be realized in the smaller states where the judges come in fre quent contact. It is not uncommon for a judge to express in an opinion his regret at an antiquated but well established precedent and his hope that the legislature will remedy it, but unless some ambitious officer of a local bar association assumes the duty, the sugges tion usually is soon forgotten. Our over burdened legislators exhaust their strength on the manifold social nostrums urged by enthu siasts and have little time to consider reforms not forced upon their attention. The doctrine of separation of powers between the different departments of government which we carry to such extremes in this country often pre vents the makers of laws. from receiving the expert aid which could be afforded by those who define it. Yet executive officers recom mend legislation. Why would it not be well if the judges could submit to the legislature an annual report recommending changes in the law.