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law giver's command. The idea that human behaviour can be suddenly changed by mere legislative fiat, has resulted from a failure to appreciate the relation of moral precepts, and social conventions, to the field of positive law.

There are many laws which neither involve questions of morality nor seriously interfere with human desires. The traffic laws afford an example. Many of the rules of commercial law are of the same. nature. It is not so important what the rule is, so long as there is a rule. Such laws are generally accepted by people without objection. Then there are laws which affect only a very small proportion of the population. The heavy surtax on large incomes is a law of this type. Such laws seldom arouse strong opposition on the part of the great masses of people and enforcement is usually not difficult although the law is regarded as unjust by those who are affected. Moreover, there are many laws which deal only with the organization of government. Such laws rarely involve moral questions or disturb prevalent customs and habits of people. But our experience has been that a prohibitory law, which actually touches the liberty of people generally, has little chance of enforcement unless it is supported by the generally accepted precepts of morality or the actual conventions of society.

The social reformer has too often overlooked the importance of this fact. Having decided that particular habits or practices of people should be stopped, he has seized upon the device of law as a means of accomplishing his purpose without first having created at predominant public opinion in favour of the reform. Not only is such procedure likely to fail in the accomplishment of its purpose, but it is very apt to produce social consequences which are worse than the evil sought to be destroyed. That there must be laws needs no argument. But the law should further human desires rather than thwart them. The law should accord with the precepts of morality rather than contradict them. If we would change man's ways, we must first change his habits of thought; we must first revise his code of morals; the law will follow.

Much has been written, and more has been said, about the lawlessness and corruption which have followed the adoption of the Eighteenth Amendment to the Federal Constitution. Those opposed to this law have pointed to this state of affairs as conclusive proof that the law is intolerable, immoral and should be repealed. On the other hand, those responsible for this law have attempted to shift the blame for the existing conditions by accusing their opponents of aiding and abetting in its violation. Whatever may be our opinion on this question, it is a fact that thus far the prohibition

10-C.B.R.-VOL. IV.

law has proved incapable of enforcement in many sections of the country. The violation of this law has steadily increased since its adoption, and there is no indication that the present deplorable state of affairs will cease at any time within the near future. It is a significant fact, however, that obedience to the Volstead Act in different sections of the country has varied in proportion to the extent to which people in the various localities had already come to regard the use of intoxicants as a social evil and, therefore, morally wrong.

The popular belief that a representative democracy is government by the majority has led many good citizens into the error of thinking that a legislative enactment, or a constitutional amendment, is ipso facto an expression of the public will. When it is recalled that considerably more than half of the population entitled to suffrage do not vote, that perhaps a majority of those who vote are not in fact expressing an opinion on particular social legislation, that legislation involving important changes in the law is often passed by a bare majority of the legislative body, the illusion that the voice of the legislature is the voice of the people vanishes into thin air. Under our political organization legislative bodies not infrequently reflect the desires of an active and well represented minority, with the result that important interests which are not strongly represented are frequently ignored. It is possible for well organized groups within the state to have enacted into law, and thus foist upon an unwilling people, all kinds of burdens and restraints. Too little consideration has been given by law making bodies to the question whether the clamour of the propagandist, the reformer and the lobbyist, is inspired by the selfish interests or mistaken beliefs of small groups, or by the interests of the public at large.

One of the most important aspects of social legislation is the question whether the control of particular matters may be best handled by the national or by the state governments. At a time when a very large part of the population was engaged in agricultural pursuits, when industry and business consisted chiefly of small traders and manufacturers who served the local needs of a particular community, the social policies of one state were of slight importance to people in another and the laws of one state had little effect upon people in another. Under these conditions state regulation of business was a workable plan. But as commerce and industry spread across state lines, and people in one part of the country became more and more dependent upon people in other parts of the country, the multifarious laws of the different states became a serious obstacle in the path of the commercial and industrial development of the nation. A widespread demand that the Federal Government should.

act for the purpose of unifying the law resulted in an extensive exercise of Congressional power based upon the commerce clause of the Federal Constitution. But the movement to nationalize the law has not stopped with interstate commerce. There is an increasing effort to procure the enactment of Federal laws dealing with all kinds of matters, many of which are properly matters of local concern. While there are many commercial and industrial problems which, because of their interstate character, can be effectively dealt with only by a national law, it does not follow that all reforms should be nationwide in scope. In a country as large as the United States, with such diverse interests, that which may be a desirable law in one section may be quite undesirable in another. A law which may promote the social and economic well being in one section may prove to be ruinous to another. A law which may easily be enforced in one section may produce lawlessness and corruption in another.

Another cause of the perplexing difficulties which now confront us is that laws have been passed too freely without consideration of whether there existed the necessary machinery for their effective. administration and enforcement. It must not be forgotten that the most desirable law may utterly fail to accomplish its purpose if suitable means are not provided for its proper administration. For some time we have been attempting to use the agencies for the administration of law which were devised by our fathers a century ago to perform much simpler tasks than those required by the complexities of modern life. We have grossly neglected this aspect of law making because we are relatively ignorant of the science of administrative law. Our universities have for years engaged in a study of the principles of substantive law, but have paid little attention to the problems of law administration. Millions of dollars have been spent through governmental and private agencies in discovering and pointing out social evils, but little has been spent for a scientific study of ways and means of curing them.

Before we go further with the expansion of the domain of positive law, we should give more thought to the limitations of law as a device for social control. We should more carefully distinguish between matters calling for national regulation and matters of local concern. We should make a more scientific study of the various devices for law administration with the view of adapting them to the tasks at hand. If properly employed, law may be made to better serve human interests, but it is a dangerous instrument in the hands of men who do not know how to use it.

YOUNG B. SMITH.

School of Law, Columbia University, New York.

THE MYSTERY OF THE SEAL."

We have all heard of the "Mystery of Seisin ": the interest in Seisin is almost a thing of the past, but the Seal is a living thing which raises its head every day in our Courts. Why a Seal or a red wafer should be so important is often puzzling: were an intelligent legislator to be called upon to frame a Code of Laws, tabulâ rasâ and unhampered by the past, he would never think to place so much importance on a token.

Of course much of our learning on the subject derives from times when few could write and many made their contracts, evidenced by a seal and not by a signature.

We are taught that even yet a specialty sealed need not be signed, although one would be very unwise not to insist on signature as well.

In two recent volumes published by the King's Printer, London, of the Curia Regis Rolls of the Reigns of Richard I and John1 are a number of cases of Seals-I extract a few to show how the subject was considered when the Common Law was in the making.

In Trinity Term, 7 Richard 1, (1196) in a Northampton case, an Assize was held to determine whether William de Courtenay and others had unjustly disseised Richard de Blukeville of certain lands in Newton-William's bailiff appeared and pleaded that William had seisin "per dominum G. filium Petri cujus breve protulit sine sigillo " -through Lord Geoffrey Fitz Peter whose writ he produced without seal. As FitzPeter was Chief Justiciar, his writ would be a perfect answer, but unfortunately for de Courtenay, the document had no seal; it was so much waste paper "et ideo non omittitur quin assisa capiatur," and consequently it is not omitted to take the assize.

In the result the jury found that William did not disseise Richard but his bailiff and his co-defendants did: Richard was given his land and 40 shillings damages, the bailiff and the co-defendant were fined 6s 8d each-all for the want of a seal.

The importance of the seal in judicial process is well shown in a Hereford case in Michaelmas Term, 4 John, (1202).

Walter Tyrrell had been summoned to hear judgment in a plea he had entered in an action concerning certain land: he neither appeared nor essoigned-but judgment was delayed to the Quindene

of St. Hilary," quia sigillum justiciariorum non fuit apud Lond -Because the seal of the Justices was not at London.

These were in the Superior Court; but the seal was equally important to process in the Inferior Courts, the Comitatus or County Court, in which when acting judicially the Vicecomes, Sheriff, was Judge, if the action was begun by writ-for as The Mirror says, i, 15," E celez courz sunt appellez countiez ou les jugemenz se funt par les sieuters si bref ne isoit "-and these Courts are called Counties where the judgments are made by the suitors if there is no writ.

The judicial decree of a Comitatus acting without the Sheriff could be certified by four Milites thereof; but that of the Sheriff only by writ sealed with his seal.

In Michaelmas Term, 4 John, (1202), in a Cornwall case, John de Lifton (Liston) sued Richard de Marisco for half a Knight's fee-Richard neither appeared nor essoigned, but judgment was delayed to the Octaves of St. Hilary "quia idem Johannes tulit brevia sua quibus placitat sigillata sigillo vicecomitis, ut dicit "because the said John had his writs under which he claimed, sealed with the seal of the Sheriff as he says.

The Court could not take judicial cognizance of the seal of a mere Vicecomes as it must of that of a Chief Justiciar: and John was given a chance to prove "brevia sua." However the Pleadings were noted closed: "et tunc alocetur ei quod ipse Ricardus non venit, etc" -and, then, it was awarded in his behalf that the said Richard did not appear, etc. So that unless Richard purged his neglect, paying a smart fine to the King, all John would have to do would be to prove the seal of the Vicecomes.

When an Inferior Court had proceeded upon the writ of a former Chief Justiciar after "sigillum et justiciarius sunt . . . mutati,”7 its Milites coming to "make a Record," ie., certify its judgment, found themselves in trouble-" curia illa inquisita fuit qua racione tenuit placitum . . . antiquum factum tempore domini Rothomagiensis tunc justiciarii, cum sigillum et justiciarius sunt postea mutati"-the said Court (of Arnold de Bosco) was asked for what reason it held plea (on a writ) made of old in the time of Lord (Walter de Constanciis, Archbishop) of Rouen then Justiciar when seal and Justiciar were afterwards changed. No wonder, "obmutuit" -it had nothing to say: the judgment of the Inferior Court went for nothing and the defendant William, son of Sweyn, kept the land.

That it was not safe for the Judge of an Inferior Court to meddle with the seal of writs: the Prior of Repedon' (Repton) learned this in Hilary Term, 10 Richard I, (1199). He had a local Court and one

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