Parlamentos, hará que gradualmente la República americana afirme, por la responsabilidad de los gobernantes, la estabilidad de su equilibrio y el respeto de las reglas y los límites constitucionales.

BIBLIOGRAFÍA.

Anson: "Loi et Pratique Constitutionnelles de l'Angleterre.”
Arzens: "L'Échec du Gouvernement Parlamentaire."

Barthélemy: "Le rôle du Pouvoir Exécutif."

Batbie: "Droit Public et Administratif."

Benoist: "La Réforme Parlementaire."

Blüntschli: "Derecho Público Universal."

Bouchard: "Des Limites du Contentieux Administratif."

"Bulletin de la Société d'Études législatives."

Burgess: "Ciencia Política."

Calvo: "Digesto Federal."

Carrasco Albano: "Comentario de la Constitución Política de 1833."

Chateaubriand: "La Monarchie selon la Charte."

Chaveau Adolphe: "Principes de Compétence et de Jurisdiction Administrative."

"Constitutions des Treize États-Unis de l'Amérique."

"Constitución de la República Oriental del Uruguay."

Contuzzi: Diritto Constituzionale.

Cooley: "Derecho Constitucional.

Crocker: "El Gobierno de los Estados Unidos."

Curtis: "Historia de la Constitución de los Estados Unidos."

Delafosse: Théorie de l'Ordre."

Deschanel: "La Repúblique Nouvelle."

Diario de Sesiones de la Asamblea Nacional Constituyente y Legislativa. Diario de Sesiones de la Cámara de Representantes.

Diario de Sesiones de la Cámara de Senadores.

Foucart: "Élements de Droit Public et Administratif."

Fuzier-Herman: "La séparation des pouvoirs."

Hauriou: "La Souveraineté Nationale."

Hanotaux: "Histoire de la France Contemporaine."

Hélie: "Les Constitutions de la France." 1875.

Huneeus: "Obras."

Jellinek: "L'État Moderne et son Droit."

Jiménez de Aréchaga (J.): "Cuestiones de Legislación Política."

Jiménez de Aréchaga (J. E.): “El Poder Ejecutivo y sus Ministros."

Jiménez de Aréchaga (J. E.): "La Extensión Democrática."

Kent: "Del Gobierno y Jurisprudencia Constitucional de los Estados Unidos." Laboulaye: "Histoire des États-Unis."

Laferrière: "Juridiction Administrative."

Laveleye: "Les formes de Gouvernement."

Lawrence Lowel: "Le Gouvernement de l'Angleterre."

Macaulay: "Estudios Políticos."

Martin: "Droit Constitutionnel."

Michoud: Des Actes de Gouvernement."

Montes de Oca: "Derecho Constitucional."

Moreau: "Pour le Régime Parlementaire."

Muel: “Gouvernements, Ministeres et Constitutions de la France."

Nerinx: "Le Pouvoir Judiciaire aux États-Unis."

Ostrogorski: "La Démocratie et l'Organisation des Partis Polítiques."
Pansey: "De l'Autorité Judiciaire en France."

"Registro Nacional de Leyes y Decretos."
"Revista Argentina de Ciencias Políticas."
"Revue de Bélgique.'

"Revue Polítique et Parlementaire."
Rowe: "El Gobierno de la Ciudad."

Samper: "Derecho Público Interno de Colombia."
Savary: "La Responsabilité Ministérielle."
Story: "Comentario sobre la Constitución."
Tiffany: "Gobierno y Derecho Constitucional.”
Tocqueville: "L'Ancien Régime et la Révolution."
Vedia: "La Constitución Argentina."
Vivien: "Études Administratives."

Thereupon at 5.10 o'clock the subsection adjourned.

SESSION OF SUBSECTION 3 OF SECTION VI.

SHOREHAM HOTEL,

Tuesday morning, January 4, 1916.

Chairman, EUGENE WAMBAUGH.

The session was opened by the chairman of the section, Dr. James Brown Scott, who introduced Prof. Eugene Wambaugh, of Harvard University, the presiding officer and chairman of the subsection on jurisprudence.

IS LAW A SCIENCE?

By EUGENE WAMBAUGH,

Law School of Harvard University.

When the framers of the program of the Second Pan American Scientific Congress established a subsection on jurisprudence they seemed to indicate by this title that the deliberations of the subsection might appropriately extend to all parts of law; but by causing public international law and constitutional law to be adequately covered in other subsections, they removed the necessity for dealing with those departments in the jurisprudence subsection. For the residuum thus left to the peculiar attention of this subsection there is no technical name. The residuum is obviously vast. It is, indeed, composed of the rules dealing with all the problems which arise in everyday life-the law of contracts, of torts, of inheritance, of agency, of negotiable instruments, and so on through the long list of homely topics which involve neither the rights of nations nor the powers of government.

A Pan American view of this residuum differs much from a Pan American view of the two important departments now excluded. The investigator in international law expects to find uniformity in the rules approved by American countries-indeed, identity with the rules approved throughout the world. The investigator in constitutional law does not expect to find uniformity, but he certainly does expect to find similarity-similarity based upon the fact that throughout the 21 American Republics there are written constitutions and a popular form of government., The investigator who deals with the law of daily life expects to find neither uniformity nor similarity when he compares the rules prevalent throughout the United States with those prevalent throughout Latin America. He is prepared to find diversity, for the reason that in the United States most of the rules are historically deducible from the system brought from England, and in Latin America ordinary doctrine is based upon the modern Roman law brought from Spain and Portugal.

For a moment let us think in terms of geography. International law encircles the globe. The system of governmental law based upon written constitutions has for its special habitat the American continents, and it has flowed

from north to south. The two systems of what may be termed everyday. law-the Anglo-American common law prevalent in the United States and the Roman or modern civil law prevalent in Latin America-are found on both sides of the Atlantic, and they have flowed in approximately parallel streams from east to west, or, rather, to southwest. This allusion to a globe may serve to visualize the essential facts as to three divisions of law-international law, with its key-note of uniformity throughout the Americas and the world; constitutional law, with its keynote of similarity throughout the American Republics; and everyday law, with its keynote of diversity-a diversity in history, in mode of ascertainment, and frequently in doctrine.

Perhaps it is now clear that in a scientific congress law may appropriately have at least three subsections, if any; but is it clear that in a scientific congress law is entitled to any place at all? It is not common for lawyers to find the law classed with the sciences. Let us think not of international law nor of constitutional law, but simply of the homely rules which have to do with everyday life, and let us ask ourselves whether law is a science, and what kind of a science it is, and whether it may appropriately be included in a scientific congress.

No one would deny that in some sense law is a science; for it is said that science is merely systematized knowledge, and no one doubts that rules of law exist and that they are capable of more or less accurate statement in a connected form. Yet a systematic statement of the rules of games of chance would not be welcomed at a scientific congress; and the same is true even of a game of skill, and indeed of every science that does not deal with matters of grave importance.

With what kinds of science is law to be classed, and what is its subject matter? Law does not, like pure mathematics, deal exclusively with idealized things, such as points, lines, surfaces, numbers, no one of which exists concretely. Hence law can not be an exact science. In this respect it resembles applied mathematics, physics, natural history, and all the sciences which deal with reality, and which consequently recognize friction, elasticity, variation, and the impossibility of precise measurement. On the other hand, as the rules of law are not observations of external nature, but are products of the human mind, from this point of view they may be thought to resemble the conceptions of pure mathematics. Yet, though the rules of law may resemble somewhat both the rules deduced from the observation of external nature and the conceptions of pure mathematics, they are essentially different from either; for the rules of law are made by men, can be changed by men, and are intended to secure the welfare of mankind; and the science which gathers them and classifies them can not be fully respected unless those rules are fairly sensible and are so developed and applied as to meet mankind's changing needs.

Does the law meet this test?

No useful answer to such a question can be given without entering into details. It is not satisfactory to say merely that as law consists of the body of rules made by society and enforced in society's courts, law necessarily conforms to society's needs. Nor is it satisfactory to say merely that the rules made by society as to those matters recognized by the courts, just like rules made by society as to fashions, tend to become rigid and thus to outlive their full usefulness. Such general statements are not enough, but they do give an inkling of what the investigator may expect to find, and hence they have some utility. It will be well to bear them in mind in the brief presentation now to be made of a typically homely topic-the law of nuisance as it is now found in the United States.

Nuisance is a word with a somewhat indefinite meaning. Hence it will be dealt with not in general language, but by the discussion of specific instances. Four litigated cases will be summarized, giving examples of four sorts of nuisance and also of the four sorts of remedy with which law in the United States handles nuisances. Thus it will be seen in a concrete fashion what a nuisance is and what the law does about it. To avoid a suspicion that the whole country has been ransacked for extraordinary cases, or that the cases were decided by courts peculiarly hospitable to extreme or novel doctrines, these four cases will be taken from the same court, and that a court of recognized conservatism-the supreme judicial court of Massachusetts.

The first case is Commonwealth v. Upton, which was decided in 1856. There a man had a slaughterhouse in the town of Fitchburg. He had maintained it for at least 20 years. He had established it in a neighborhood which at that time was perfectly appropriate for a slaughterhouse; but time had passed, streets had been made. near the slaughterhouse, people had gone to live in the neighborhood; and at last this owner was proceeded against criminally, being indicted for maintaining a nuisance. How horrified this man must have been. A slaughterhouse was a necessary thing; and possibly this slaughterhouse was conducted as well as it could be conducted. As far as most people know such a thing is not peculiarly bad for the neighborhood's health, although it is probably disagreeable to smell and possibly disagreeable to hear. Now, at last, this man was indicted; and he was held guilty of a crime-this man who certainly once was innocent and who had been conducting for years his useful business in this one spot. Thus we find from this decision that a man may be actually indicted and punished as a criminal for a useful act which he has been performing for a long, long time, which useful act by and by, as surrounding circumstances have changed-circumstances wholly independent of this innocent culprit-has come to be what we call for short a nuisance; that is to say, the act has become an unbearable annoyance to the public.

The second case is a later one-Davis v. Sawyer,' decided in 1882. There a man had a factory, and adjacent to his factory a tower, and upon the tower a bell weighing 2,000 pounds. With this bell he habitually summoned his employees. He awakened them in the morning at 5 o'clock by ringing sometimes as many as 90 strokes, and between 6 and 6.30 he rang the bell several times again, and he kept up that practice at intervals throughout the whole day. There was another man in the neighborhood who lived in an ordinary residence 1,000 feet away, and this other man and the people in his home, none of them employees in the factory, were awakened most disagreeably at the hour of 5 in the morning. Most of the people in the neighborhood, it would seem, really needed that warning at 5 o'clock; and in a way they enjoyed it, as it was part of their mode of making a living, part of the machinery enabling them to reach at the right time the place where they were to be use ful and eventually to receive their wages. It was decided that a court of chancery should grant to the injured man an injunction. That is obviously a different remedy from the criminal procedure followed in the first case; but the two cases are much alike in essence, for here again we find a useful business conducted in a way which doubtless at some time and in some place would be appropriate or even laudable, and here again we find society interfering.

1 Gray's Massachusetts Reports, vol. 6, p. 473.

2 Massachusetts Reports, vol. 133, p. 289.