REVIEWS

DOIhttp://doi.org/10.1111/j.1468-2230.1950.tb00185.x
Publication Date01 Oct 1950
REVIEWS
~DINQS
IN
AMERICAN
LEQAL
HISTORY.
By
Professor
MARK
DE
WOLFE
HOWE.
[Harvard University Press
;
London
:
Geoffrey
Cumberlege.
60s.
net.]
IT
is
in retrospect somewhat curious that the great school of historinns virtually
founded at Harvard in
1870
by Christopher Columbus Langdell should have
been devoted to English rather than to Americnn history and in particular to
the mysteries of medirevd law. We in this country would be ungrateful if we
did
not salute in Professors Woodbine and Thorne the heirs of Langdell, Ames
and Holmes. But th? transference of interest from English to American origins
hm. been long overdue, and it is only in
our
own days that, stimulnted
or
provoked by the work of Dean Pound, serious study has been directed upon
indigenous materinls. Professors Chafee and Haskins, Radin and Goebel, have
shown how eagerly, and with what
a
pleasant incompatibility of temperament,
the
soil
may be turned. But, to be really fruitful, the work of the individual
must be supported by the technique of the research institute; and to this end
the seminars conducted by Professor Howc nnd the source book now published
are
essential menns.
The maker of any such book is presented with the two basic problenis
of
selection and of continuity. Professor
Howe,
in his preface, has explnincd the
reasons that impelled him to his own choice of mnterials. The emphasis on the
law of Colonial Mnssnchusetts, on the problems of federnlisni, and on the early
and mid-nineteenth century movement townrds codification, needs no justificn-
tion. Within these chosen bounds the selection, to the unsophisticated
eye
of
an English lawyer, is admirably suited to display the salient fentures of each
period. The
Winthrop papers are nn unrivalled source of informntion-but have they
perhnps been drawn upon
a
little too heavily? The interpretntion of the Alien
and Sedition Acts certninly reflects
a
crisis in the development of American
lnw-but might not its significance have been marked with rnther less citntion?
These
suggestions, conceived in ignorance, are offered with diffidence. The
mnd problem of continuity is perennial. Should nn editor of ‘sources’ set
them in
a
framework of narrntive
or
should he leave the
hnpless subject’
to
speak for itself? Professor Howe has no hesitation in preferring the latter and
sterner alternative. With case books upon current law there cnii be little
clouhl
but that such is the better course: in the lnbyrinth of legal history the services
of an experienced guide are more necessary.
For
the English student nt lenqt,
and, it mny
be
suspected, for those Americnns who cnnnot enjoy the privilepo
of Professor Howe’s seminars, the virtual denial of
a
connrcting nnrrativcr
seems
to
be too heroic. To allow the render to shore the editor’s own reitction
to
the documents would hnve clarified their message without iinpnirinp; their
integrity; and the few indicntions of that reaction wliich we are permitted
serve
only to whet
our
nppetite.
It
must be added that the dificulty of seizing the
essential points
of
the story caused by the lnck of commentnry is incrensed
l)y
the absence of an index.
The complaint, however, is only that we do not get enough
of
what
wvoulcl
clearly hnve been
n
good thing. Taken
as
n
whole, there is no doubt
of
the
book’s success. Professor Howe has set in due perspective the opposing
influences upon Americnn
legal
development--on the one hand, of legislative
creation
as
against judicial technique, and, on the other hand, of Englisll
tradition
as
ngainst colonial initiative. Nothing could hnve been happier than
to
illustrate
the
former interplay of forces by
a
full account of the interesting
526
It
is
only
n
question whether it is not too rich for digestion.
ocr.
1860
REVIEW
8
527
movements towards codification by which, on the other side of the Atlantic, the
enthusiaani of Bentham was duplicated and, as nome would
my,
translated into
the language of common sense. It
is
a fortunate coincidence that the student
of
this
present book can refer for comment to the recently published
Field
Centenur*y
Esiays.
In assessing the respective merits of English tradition and
of colonial initiative stormier weather is inevitably encountered. It is doubt-
less true that the reaction against a
Blackstonian
view of American law,
associated prominently with Professor Gocbel, must command much support
;
though, if the criticism of Stubbs’ disciples is just, that they regarded the
English church as Protestant before the Reformation and Catholic after-
wards, it may equally be permitted to question the validity of a doctrine that
would make the colonial law American before the revolution and English after-
wards.
Nor
is it without interest, in view of Professor Goebel’s almost
contemptuous rejection of English central justice as the precedent for urrly
colonial law, to notice that, in
Uiddirigy
v.
Rrmt
in
1657,
Finch’s
Nomotechnin
is
constantly cited, while Dalton’s
Justice
receives a mere passing nod of
recognition. Between the vehement ardour of the
revolutionary
school and
the urbane ‘orthodoxy’ of Dean Pound, Professor Howe has steered his course
with skill and discretion, and his selected documents should serve to temper
too confident an assertion of either view. His use of footnotes throughout the
rolumc-a touchstone of any book of sources-is singularly happy and illumin-
ating and almost always sends the render
to
the most favourable quarter
for
fuller information.
It
might perhaps be suggested that, in the chapter on
English law, the scales are weighted too heavily in favour of Bacon as against
Coke, who, unpleasing pedant
8s
he was, alone among contemporaries enjoyed
the professional authority to adapt old law to new conditions; and that Mnit-
land’s brilliant but dubious paper on
l
English knw and the Renaissance
might
have been balanced by
a
reference to later and compensating research. But
these comments are hypercritical. The book is a most interesting venture into
a
Add that has long awaited and seems now likely to repay cultivation, and
Professor Howe may well come to be regarded
as
n
second Lnngdell opening
a
second era in American Legal History.
C.
H.
S.
FIFOOT.
GOVERNMENT
BY
DECREE.
By
MARGUERITE
A.
SIEGEART,
LL.B.,
[London
:
Stevens
DICEY,
it is nor generally acknowledged, was guilty of
a
serious disservice to
clear thinking when he misrepresented the characteristics of
droit
adminutrotif
(or
rather, the
rdgime
administratif)
in France. Gentrations of students were
educated in the belief that French administrative justice, like the practice of
cnting frogs, was something to be regarded with curiosity but with reprobation.
AS
recently
as
1982,
when the iconoclasts were busily
at
work, the Committee
on Ministers’ Powers adopted Lord Hewart’s view
l
that
droit
adminirtmti/
is
completely opposed to the first principles of
our
Constitution’. Since then
confidence has given way to doubt; and interest in the French system has
grown .considerably. But English students have been handicapped by
a
shortage of easily accessible materials. There have been two
or
thm articles
in legal periodicals (one of them in this
Rem’em)
and the ninth edition
of
Dicey
included a brief but useful description by Professor David: but there
has been little else in English. Few of
us,
unfortunately, were
xcdoiis
enough
to wade through the French treatises.
In these circumstances,
Mrs.
Sieghart has made
a
valuable contribution
to
the literature on public law by presenting
a
well-documented account of the
structure and work of the
Conseil
d’Btat
and other administrative
courts.
This
account
is
subsidiary to the main theme of the work, which
is
devoted chiefly
DR.JUR.
With a foreword
by
C.
K.
ALLEN.
&
Sons,
Ltd.
1950.
xxix
and
848
pp.
808.1

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