HARVARD LAW REVIEW Published monthly, during the Academic Year, by Harvard Law Students THE LAW SCHOOL The registration in the School for the last twelve years is shown in the following table. For eleven years the figures are from records dated November 15, but for the current year the figures were made up on October 30. At this time last year the total number of students in the school was 60. At present they number 874. This is the largest enrollment in the history of the school, the largest registration heretofore being 857 during the year 1916-17. The first-year class exceeds by more than one hundred the first-year class of that year. In the whole school one hundred and fifty-five different colleges are represented. The following table shows the geographical source from which the twelve successive first-year classes have been drawn: *These figures are for the special session which began on February 3, 1919, and In the present first-year class one hundred and twenty-one colleges and Harvard, 85; Princeton, 33; Yale, 32; Brown, 17; Dartmouth, 12; Univ. of JURISTIC THEORY AND CONSTITUTIONAL LAW - LIABILITY WITHOUT Company v. Hammer,1 was said some years ago by Professor Wambaugh.2 Written just after the decision in Ives v. South Buffalo R. Company,3 Professor Wambaugh's views have been amply borne out by the subsequent course of decision. But the dissenting opinions deserve notice from another standpoint. "Talk of stubborn facts," says Dr. Crothers; "they are but babes beside a stubborn theory." That liability for tort can flow only from culpable conduct is simply a nineteenth-century juristic theory. Its most ardent advocates had to admit many "exceptions," which they explained historically as holdovers from an older idea that he who caused harm must absolutely answer for it. These "exceptions," which are now proving to contain a great deal of living and growing law, were but recently pronounced gradually disappearing remnants of primitive law. Also the most conspicuous case of liability without fault, the case of the master's liability for the tort of his servant, was superficially reconciled with the theory of no liability without fault by a dogmatic fiction of representation whereby the fault could be made to appear that of the master. Thus the nineteenth-century philosophy of law that put the free human will in the central place as that upon which everything must turn, gave us a dogmatic reduction of all liability to contract and tort to liability to perform what one had freely undertaken and liability to answer for harm which he had culpably caused. By "implying" promises in cases of inequitable retention of benefits and in cases of duties annexed by law to relations and callings, by invoking the idea of representation, and by loose use of the term "negligence," it was possible to make this will-theory of liability cover the whole law. It is significant of our modes of legal thought that just at the time when this theory has definitely broken down, four judges of our highest court should be thinking of it as something so fundamental in law that no legislature may reasonably infringe upon it. Truly taught law is tough law." In another respect the dissenting opinions illustrate the importance of juristic theory. "There is," says Mr. Justice McKenna, "menace in the present judgment to all rights, subjecting them unreservedly to conceptions of public policy." No better example could be vouched for Austin's remark that until by careful analysis we have accurately determined the meaning of such terms as "right" and "public policy," "subsequent speculations will be a tissue of uncertain talk." If legal rights are definitely established by a constitutional provision, assuredly 1 U. S. Sup. Ct. No. 20, October Term, 1919. For a statement U. S. Sup. Ct., June 9, 1919 (October Term), see RECENT CASES, p. 116. 2 "Workmen's Compensation Acts: Their Theory and Their Constitutionality," 25 HARV. L. REV. 129 (1911). 3 201 N. Y. 271, 94 N. E. 431 (1911). * See note on Theyer v. Purnell, [1918] 2 K. B. 333, in 32 HARV. L. REV. 420. 5 See BATY, VICARIOUS LIABILITY, 7. E. g., in Noyes v. Colby, 30 N. H. 143, where an owner of a cow was held liable for trespass upon land due to its being turned out of the pasture by a third person without his knowledge or consent, the court quotes from Blackstone: "for if by his negligent keeping they stray upon the land of another . . the owner must answer in damages.' Here the result is called negligence, to make it appear that the result flows from culpability. ENGLISH LAW AND THE RENAISSANCE, 25. 8 2 JURISPRUDENCE, 4 ed., 11IO. they ought not to be suffered to be infringed on mere considerations of expediency. But it is only the ambiguity of the terms "right" and "public policy" that makes it possible to think of the acts in question in this way. The Fourteenth Amendment does not establish any defined legal rights. Rather it imposes a standard upon legislation - that it shall not be arbitrary and that it shall have a basis in reason. The "rights" of which Mr. Justice McKenna is speaking are not legal rights, but are individual interests which we feel ought to be secured by law, through legal rights or otherwise. Likewise the "public policy" of which he speaks is a mode of referring to social interests which the law ought to or does secure in delimiting individual interests and establishing legal rights. Often in a conflict of individual interests the law turns to "public policy" in this sense to determine the limits of a proper compromise. When the common law in a conflict between the individual interest of the landowner and that of the traveler on the impassable highway resorted to a "policy" expressing a social interest and established a "right of deviation," when in a conflict between the individual interest of the person defamed in his reputation and that of the defamer in speaking freely it resorted to another policy expressing another social interest and established privileged occasions, when as between the individual interest of the owner of land to enjoy it uninjured and that of the owner of a cow which has been let out of the pasture by a wrongdoer without his knowledge or consent, it imposed a liability without fault to maintain the social interest in the general security in all such cases the common law "subjects rights" to "public policy" exactly as the statutes do of which the minority of the court complain. Our legal terminology has blinded us to these compromises, which make up the whole body of the common law. The same terminology leads us to think of like compromises taking account of new interests, when made by the legislature, as startling and revolutionary. MUST WE RECOGNIZE A NEW PRIVILEGE IN THE LAW OF EVIDENCE? It is axiomatic in our law that the public has a right to every man's evidence. To this principle the law of privileged communications forms an important exception. There is to-day no privilege for confidential communications, merely as such. But communications made in the course of a few specific relationships have been recognized as privileged from disclosure. In each the law accords the privilege purely on grounds of policy, because it considers that greater social mischief would probably result from requiring the disclosure of such communications than from Noyes v. Colby, supra. 1 See 4 WIGMORE ON EVIDENCE, quoting Lord Hardwicke, § 2192. 2 Dean Wigmore tells us that in early English trials the obligation of honor among gentlemen, in regard to matters revealed to them in confidence, seems to have been recognized as an excuse for maintaining silence. See 4 WIGMORE ON EVIDENCE, § 2286. But a sterner view of the necessities of justice prevailed. "It is not befitting the dignity of this High Court," wrote Lord Campden in 1776, "to be debating the etiquette of honor at the same time when we are trying lives and liberties." Duchess of Kingston's Case, 20 How. St. Tr. 586. See also I GREENLEAF ON EVIDENCE, 16 ed., § 248. refusing to insist upon it. To outweigh the undeniable social mischief of impeded justice, some relation, which it is imperative that the law should foster, and to the existence of which a privilege of silence is essential, must stand endangered. Obviously the number of such relationships is strictly limited. 5 The case of Lindsey v. People suggests the inquiry: should commonlaw reasoning extend to an hitherto unknown relationship, that of juvenile-court judge and child delinquent, this privilege of silence? The facts were these: A twelve-year-old boy confessed in strict confidence his part in the murder of his father to the juvenile-court judge of his district. Thereupon delinquency proceedings were instituted against him. At the trial of the boy's mother for the murder, he testified in her favor. To impeach this testimony the judge was asked to divulge the boy's confession, and was adjudged in contempt and fined on refusing to do so upon order of court. From that judgment he appealed. It appears that the boy consented to the judge's testifying. The Supreme Court of Colorado, three judges dissenting, held the confession not to have been a privileged communication; and the adjudgment in contempt was affirmed." 7 There seems to be afloat in our law a somewhat ill-defined doctrine that judges, as such, have a testimonial privilege. Whether this is law may be questioned. Some jurisdictions deny it in toto. Many merely allude to it obiter.10 At most, on the authorities, it probably nowhere extends beyond according to judges of courts of record a privilege not to be compelled to state what had occurred in court in a case there on trial before them." Moreover, this doctrine is one of personal privilege rather than of privilege based upon a relationship, and rests at best upon principles of very limited application.12 From both points 3 See I GREENLEAF ON EVIDENCE, 16 ed., § 236. 4 For Dean Wigmore's analysis of the four elements which must be present if the test of social expediency is to be satisfied, see 4 WIGMORE ON EVIDENCE, § 2285. 5181 Pac. 531 (1919). See RECENT CASES, p. 116. 6 Whether or not the decision should be supported in view of the Colorado Statute as to privileged communications, is beyond the scope of the present inquiry. The act provides: "Fifth, a public officer shall not be examined as to communications made to him in official confidence, when the public interest, in the judgement of the court, would suffer by the disclosure." See REV. STAT. OF COLO. 1908, § 7274, paragraph 5. 7 Declaration of Grievances, I COBBETT'S PARL. HIST. 1206; Regina v. Gazzard, 8 C. & P. 595 (1838); People v. Pratt, 133 Mich. 125, 131, 94 N. W. 752, 754 (1903); Hale v. Wyatt, 98 Atl. (N. H.) 379 (1916). 8 "If such privilege exist it has been honored by breach rather than observance." Parsons, C. J., in White Mt. Freezer Co. v. Murphy, 101 Atl. (N. H.) 357, 360 (1917). Lindsey v. People, 181 Pac. (Colo.) 531, 536 (1919). 10 Welcome v. Batchelder, 23 Me. 85 (1843); People v. Pratt, 133 Mich. 125, 137, 94 N. W. 752, 757 (1903); White Mt. Freezer Co. v. Murphy, 101 Atl. (N. H.) 357, 360 (1917); Hale v. Wyatt, 98 Atl. (N. H.) 379 (1916). 11 Knowles' Trial, 12 How. St. Tr. 1179 ff. (1697); Regina v. Gazzard, 8 C. & P. 595 (1838); Regina v. Harvey, 8 Cox Cr. 99, 103 (1858). See I GREENLEAF ON EVIDENCE, 16 ed., § 254 c; 4 WIGMORE ON EVIDENCE, § 2372 (3). Ι 12 Dean Wigmore would seem to suggest that judges of superior courts are exempted from attendance in court on the same theory of personal privilege which relieves the chief executive from the duty of appearing as a witness. See 4 WIGMORE ON EVIDENCE, 82372 (3). The language of the cases, however, appears rather to reflect a feeling that it is improper to expose a judge to criticism of his judgment by compelling him to testify as to facts which were presented to him in court and upon which he presumably |