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ADMISSIBILITY OF EVIDENCE GIVEN AT A FORMER TRIAL TO SHOW ITS
INCONSISTENCY WITH THAT GIVEN AT A SECOND TRIAL.......
ANTICIPATORY BREACH-Is a Cablegram Repudiating a Contract Ef-
fective as, When Delivered to the Telegraph Company?........ 614
ASSIGNMENT OF A LEASE-The Effect of a Conditional Reservation of a
Right of Re-entry in...
BURGLARY INSURANCE POLICY-Effect of Stipulations Against Loss
Where There Are No Visible Marks of Violence on the Premises 557
COMMON CARRIER-What Constitutes Delivery to a Railroad in Order
to Impose Liability as....

EQUITY-The Jurisdiction of a Court of, to Prevent a Multiplicity of

Suits

GARNISHMENT OF THE CONTENTS OF A SAFETY DEPOSIT Box..

INSURER-Liability of, When Insured is Executed for a Crime....

JUDICIAL SYSTEM OF PHILADELPHIA COUNTY-Report of the Special

Committee on the.....

JUROR-Waiver of Statutory Qualifications of, in Capital Cases.

LACHES OF STOCKHOLDERS SUING ON BEHALF OF THE CORPORATION.

MARRIAGE-Does it Alone Emancipate a Male Minor?...

NEGLIGENCE-Voluntarily Incurring Danger to Save Life as Con-

tributory

NOTE-Liability of the Indorser, When the Holder Fails to Present

the Note When Due, to the Maker. Presentment and Demand by

Telephone

PREFERENCE OF A STATE AS A CREDITOR..

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SICK BENEFITS?-Is Color Blindness a Disease or Disability Entitling
a Member of a Relief Society to......

SURETIES-The Responsibilities of, for the Acts of a Public Officer

Done Colore Officii.....

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TORT-Can a Married Woman Maintain an Action of, Against Her
Husband for a Tort Committed During Coverture?....

WAREHOUSEMAN-Liability of, to an Assignee of a Non-Negotiable

Warehouse Receipt

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LIMITATION OF ACTIONS-malicious prosecution-pendency of appeal 424

Private nuisance

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PAYMENT-mistake of law or fact-right to recover..

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PRINCIPAL AND SURETY-extent of liability-term-re-employment... 426-

RAILROAD-crossing accident-"stop, look and listen".

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STATUTE OF FRAUDS-part performance-personal services.
TORTS-interference with contract.......

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Collins (C. W.)-The Fourteenth Amendment and the States...
Dougherty (J. H.)—Power of Federal Judiciary Over Legislation...
Eddy (J. A.)-The New Competition....

Hershey (A. S.)-The Essentials of International Public Law.
Higgins (A. P.)-War and the Private Citizen. Studies in Interna-
tional Law

Jones (C. L.)-Statute Law Making....

Miraglia (Luigi)—Comparative Legal Philosophy Applied to Legal
Institutions. Translated from the Italian by John Lisle...

Montgomery (R. H.)—Auditing, Theory and Practice..

Street Railway Reports

Tarde (Gabriel)-Penal Philosophy..

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YALE

LAW JOURNAL

Vol. XXII

NOVEMBER, 1912

No. 1

THE INDEPENDENCE OF THE JUDICIARY, THE SAFEGUARD OF FREE INSTITUTIONS

Address to the Graduating Class of the Yale Law School, June 17, 1912, by William B. Hornblower, of New York.

In choosing a subject for this address, I have been tempted to take some academic topic such as the relative merits and demerits of the common law system of jurisprudence "broadening out from precedent to precedent" as compared with statutory law rigidly embodied in codes, or the relative merits and demerits of combination as compared with competition in trade and commerce and the merits and demerits of statutory regulations on such subjects.

There are, however, certain burning questions of the day affecting the independence and the integrity of our judicial system on which I feel it to be the duty of every lawyer to speak out with all the force and emphasis at his command and which I do not feel at liberty to ignore.

To evade or to ignore these questions would be to be recreant to my professional duty. When the integrity and independence of the judiciary are at stake, all other questions become unimportant.

When the sappers and miners are at work undermining the foundations of our judicial structure, it is idle to discuss questions of detail of construction or reconstruction of the edifice.

They find

The young men just graduating from our law schools find themselves confronted by a most serious situation. the courts subjected to attack and exposed to peril.

The rising

generation of lawyers are called upon to resist this attack and to defend the courts from this peril. As officers of the courts sworn to support the Constitution of the United States and of the State, and to faithfully discharge their duties as attorneys and counsellors at law, it becomes their duty to see that no harm comes to the administration of the law, or to the usefulness or the prestige of the courts, and that no harm comes to the commonwealth through this attack on the courts and the law.

The air is rent by the clamor of those who are crying out for what is known as judicial recall.

This is no longer an academic question. Three at least of our States have already embodied it in their Constitutions. Agitation in favor of extending this so-called reform to other States has been and is being actively carried on. Advocates of the recall are found even in the ranks of our own profession. The self-styled Progressive is not necessarily the true Progressive. He may be a reactionary of the worst kind. To set back the clock of time is not progress but regress. Civilization rests upon law. Law rests upon the courts. The courts rest upon popular respect. If for law and for the courts are to be substituted the voice of a temporary majority of the people, then are we pro tanto abandoning the achievements of civilization and drifting back to barbarism.

Civilization consists in subordinating the wishes of the majority to the rights of the minority. Slowly and carefully and painfully have the ideals of civilization been built up. Every now and then we are called upon to contend with an outburst of primeval passion in the shape of lynch law. The spirit of lynch law may be manifested in attacks on the individual citizen or in attacks on the courts themselves. In this country our fathers. devised safeguards of the rights of a minority against the temporary whims of the majority by imposing constitutional limitations upon legislative authority. The judiciary has by its duty to administer and define these constitutional limitations and to refuse to enforce unconstitutional legislation become the defender of those fundamental rights of the minority.

It has always been the boast of our Anglo Saxon republic that we are a common sense people; that extreme theories have no charm for us; that we do not fall in love with mere phrases or catch-words. The conservatism of our people has been proverbial. The bar of this country has been the guiding force

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