and massive portal that it was, among other things, does not wish to discuss the appointment of law ordained and established to "secure the blessings instructors and the results which follow, further of liberty to ourselves and to our posterity." The than to make this brief general statement: that Constitution was thus intended to be perpetual. professional schools should be the goal for great Marshall's labors are wrought into its very fabric instructors and not the training schools for the and while the Constitution remains Marshall's fame untrained would-be instructors. The results obis secure. It will grow with the growth, strengthen tained and the standing of the school can be deterwith the strength, and brighten with the increasing mined when it is known which class of instructors glories of the nation. We hope and believe that are employed. Training schools cannot expect or, the Union of these States, bounded by two inviol- in fact, accomplish very satisfactory results in their able seas, will continue through uncounted years to attempts to instruct students in the law. diffuse its blessings and benefits upon us and our posterity. We cannot forecast the future. God's Providence determines the destiny of nations, and its workings are often as inscrutable as they are irresistible. It may be that the principles of American constitutional liberty shall become the right and birthright of distant peoples whose lands are washed by other seas and whose eyes look up to other stars. Certain it is that wherever our Constitution is or shall go, or wherever constitutional liberty shall exist on earth, there will attend it, and abide with it, the spotless and honored name of John Marshall.

INSTRUCTION IN LAW.

THE influence of law upon the progress and

development of a country, the important positions that are and ought to be held by men trained in the theory and practice of law, and the adaptability of the subject to give a broad mental training make it of the greatest importance that the student during the period of his preparatory study for the practice of law should receive the aid of the best instruction made possible by the modern advance in the science of and practice in teaching. It is imperative that the student of average mental ability receive this aid, if he is expected to make anything but a failure after passing the portals of a law school, but with this aid his chance of success is often better than that of the very bright man who relies on his brightness for

success.

The aim of legal instruction should be to give the student a broad mental training, legal wisdom and sufficient knowledge of legal principles and procedure to enable him to begin his life's study and practice with every possible assurance of success, if he be willing to do the required work. To accomplish this aim the instructor should study the subject of legal instruction under three heads.

The nature, kind and method of instruction he should give in preparation for and in anticipation of the individual work of the student.

The individual study and research of the student along the lines of the previously-given instruction. The methods by which he can accomplish the most for the students' good during the recitation period.

That instruction which trains the mind for work and supplies that general information which the student has neither time nor ability to acquire, but which is so important that he have to fully understand and master the work assigned for his individual study and research is a proposition so simple that the mere statement of it should be accepted and acted upon without argument. Logic, sound common sense and the daily experience with students should force this fact home to every instructor, even the novice But by careful study of the methods of instruction, as expounded in catalogues, lectures, papers and articles by some of the leading instructors one is convinced that our law schools are open to quite severe criticism, because they fail to give the student much, if any, instruction with the purpose of giving him mental training and preparation for work. They have adopted, in this respect, the method of first assigning work for the student to prepare, a task which

Law schools holding, as they do, the position of trustees of the early training of young men for professional life in the law have placed on them the duty to furnish this much-needed instruction. | he is unable to fully accomplish. The instructors This duty is made more imperative to-day than ever before by the demands for a higher mental training and preparation, and from the fact that the number of men possessed only of average mental ability is increasing with the increased enrollments of these schools.

The first and most important step for our law schools to take, if they have not already taken it, is to secure and retain only truly great instructors. But, for the purposes of this article, the writer wishes to consider every instructor engaged in teaching the law, either a great teacher or capable of becoming one and willing to devote himself to the careful study of the science of teaching. He

under this method attempt to give the instruction after they have quizzed the students and found that many have gained nothing out of the work but confusion as to the legal principles involved, while others have gained an erroneous idea as to the same principles. It ought to be seen by these worthy men engaged in the instruction of the law, when they consider that first impressions are the most lasting, that by this method they are wasting the time of the student, besides much energy on their part, for it will be found that it takes much more time and energy to remove from the student's mind the confused and erroneous ideas than would have been required to have sufficiently

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ples that he may need to know in preparing the work assigned for his individual research. The question may be asked by the untrained yet enthusiastic instructor, how is this purpose to be accomplished, which may be answered, in part, by the question, what are the needs of the average students the instructor is trying to instruct?

The instructor must, first of all, be master of the subject he is attempting to give instruction in, not simply having committed it to memory for this purpose; it should lie clearly, accurately and logically in his mind, for the instructor who is com

prepared the students in advance to have acquired do the work of the student. The purpose, as bea correct understanding of the legal principles fore stated, should, first, be to train the mental through their study and research. The advantage powers of the student for legal work; second, to to the student of being able to study understand- put him in possession of all the facts and princiingly and to arrive at the correct legal conclusions cannot be doubted. That the methods as to the time, nature and purpose of the legal instruction, as now largely employed, are not suited to the needs of law students, ought not to be doubted, especially when viewed in the light of the modern advance of the science of teaching. Some law schools cling to these methods for their traditional influences; others without giving any good reason for such a course. The true reason for the continuation of these methods, so open to criticism and failing to such an extent to give the students the much-needed aid at the most opportune time, ispelled to use a book or a written lecture will make that each generation of instructors have been con tent to employ the same methods in their teaching by which they were taught, not feeling, compelled to make a careful study of the science of teaching. Not one of our law schools would for a moment accept the responsibility of sending young men out to sea without chart, compass and trained mariners, trusting to their being found and taught the ways of the sea after they had struck the hidden rocks and while the hole was filling. Neither would any one of them deem it wise to send young men into a dense forest, marked only by trails familiar to the experienced guide, without compass and a trained guide. All would stamp as folly the suggestion that it would be time to send the guide after the young men were lost. The above, described methods of legal instruction are as dangerous to early study in the law as this course would be to life.

Tradition and traditional methods have been displaced by the advance of modern science in other respects less, important than the training of young men for professional life by our higher institutions of learning. There seems no good reason why these institutions should not adopt those methods of instruction which will give the students the greatest returns for their time and money.

The youthful bicyclist can make rapid progress over unknown roads, if at each turn and crossing of the roads there is a guide-post on which are full directions as to the course and destination of each road, but, if he is sent out to ride here and there, not knowing where he is riding or to what purpose, and then to return to receive the guidepost instructions, which he should have received in advance, he has not only lost time and energy, but the youthful ardor which is so important when well directed. The student of law meets with the same success or discouragement, depending upon what instruction he is given and when received.

The instruction which should precede the work of the student is all important. It should be confined, though, to the work of the instructor and not an attempt made through this instruction to

little impression on the mind of the student or be much of a success in giving this preliminary instruction. The same will be true of the instructor, who, in giving this instruction, requires students to take copious notes. There may be a place for this more technical instruction, but this is not the time to give it. This struction should be simple and fully within the comprehension of the average student's mind. It should be so given that it will attract and hold the attention of the student, causing him to think with reason by the same logic and see and understand with the same clearness as the instructo It should be broad, putting students in possession of all those facts and principles which tend to make his work more interesting and effective and his knowledge more complete. Some of the important features of the work to be assigned should be touched upon enough to create an interest and fix the attention of the mind, especially upon them during the study and research of the student; but the instructor should be always on his guard in this instruction to present the work clearly, logically and to the purpose, never trespassing upon the individual work of the student. The enthusiastic instructor will always have to be on his guard in this last respect. It is very easy to do too much for the students through this method of instruction. His sound judgment and clear understanding of the needs of the student mind, which every instructor should possess, will serve as his best guide.

The present lecture course, which seems to be gaining favor in some of our law schools, is at fault in this last respect, namely, that the instructor not only trespasses upon the work of the student, but his ambition seems to be to cover the work completely and make his lectures a digest of the whole subject, expecting the student to take copious notes and to supply the wanting parts from his memory. The result is a great disappointment to the instructor, to say nothing about the great detriment to the student body.

The writer does not wish to be understood as criticising lectures, only so far as they come within the above description and violate the sci

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of the student body for this higher mental train- Supreme Court in 44 N. Y. St. R. 9. "The act of ing and broader knowledge or the influence of the the defendant," said the court, was as direct as in great teacher upon the early training and future the case of St. Peter v. Dennison (58 N. Y. 416), possibilities of students. The subject would seem where the blast blew a chunk of frozen earth upon to be of sufficient importance to secure the closest the premises of another and injured the plaintiff, attention. It is hoped that in the near future it and a recovery was allowed without proof of neglimay receive the highest consideration, both by gence." On appeal, however, the case was rehigher institutions of learning and the instructors | versed. The distinction taken between it and the connected with these institutions which have such an important purpose to accomplish.

C. H. HARRIMAN.

NEW HAVEN, CONN., January, 1901.

SCIENCE VERSUS LAW.

BY CHARLES HENRY TUTTLE.

Hay case was that here the injury was wholly “consequential," that is, as the context explains, there was a total absence of direct physical invasion. "The immediate act," says Chief Justice Andrews, "was confined to its (the defendant's) own land, but the blast, by setting the air in motion, or in some other unexplained way, caused an injury to the plaintiff's house." Scientifically this is scarcely a distinction at all. The expanding gases have demolished the house, and whether they have done it The century which has just closed, replete with by a flying fragment, or an ear-tremor, or an airsocial, commercial and scientific advance, has se- wave, it is neither mysterious, inexplicable or maverely taxed the world's various systems of jurispru- terial. Legally, however, by dint of strictness, a dence. It is the pride of the common law that it distinction may be made. In the case of the airhas amply endured the test, and proven itself a plas-wave or the earth-tremor there is, says the court, tic and living system, capable of a healthy growth."no technical trespass." The reason lies in the That its advance, however, with what might be ancient conception of the action of trespass, framed called the "times," would not be complete, was to long before air-waves or earth-tremors, as a manbe expected. Certain rules were bound to become made force, were known. The fiction was that dear to the judicial heart, and fail to expand even around every man's land, not otherwise inclosed, under the influence of a wider knowledge and a the law drew an imaginary fence (Addison on Torts, larger liberality. A few of these cases of arrested Vol. 1, p. 446). To pass this was to break and development we propose in this paper to notice. enter his close, i. e.. to commit a trespass. The very name of the action, quare clausum fregit, suggested a physical invasion. Nor was this at all strange, seeing that in the early stage of our law a physical invasion was almost the only known means of destroying property on another's land. Whatever an earth or air wave might do to an actual fence, it could scarcely be spoken of as wrecking this imaginary inclosure. Hence the court blinded itself to the equality of destruction wrought in all three cases, and proceeded to distinguish between a flying rock and an earth-tremor or an air-wave on the ground that the latter were not embraced within a definition framed before dynamite was known. As a result our law is in a curious state. The same blast which wrecks A's house with a bowlder and crumples up B's through its own terrible energies, may be a ground of action for A but not for B.

One of the marks of the present century has been the perfection of the high explosive. Scarcely a house is now built, or a public work engineered. without a resort to blasting. The concussion and the power of the earth-and-air waves thus created were unknown to the early jurists. With them destruction of property was almost wholly confined to actual physical contact or invasion. As a result the injuries wrought by dynamite and gunpowder in blasting came before the court almost as new questions. In New York the initial case is that of Hay v. Cohoes (2 N. Y. 154). Here, the fragments of the blasted rock wrecked the dwelling-house of the plaintiff on adjoining land. No negligence in executing the work was alleged or proved. In holding for the plaintiff the court said: "The means by which it (the lawful improvement) was prosecuted was illegal. For they disturbed the rightful possession of the plaintiff and caused a direct and immediate injury to his property." The case is a striking example of old principles fitted to new circumstances. Forty years later, however, the opposite tendency controlled the case of Booth v. R. W. & T. R. R. Co. (140 N. Y. 267). The new case resembled the old in every respect except one. Here the immediate cause of the injury was not flying fragments, but the wrenching and cracking of the house due to the force of the blast itself. The trial judge instructed the jury that the defendant was liable whether "the work was done carefully or negligently." This instruction was sustained by the

In cases of physical injury due to mental shock the law is in a similar state. Though the reciprocal action of mind and of body is now common knowledge, the courts still confine recovery for negligence to case of actual impact. The leading case is Mitchell v. Rochester (151 N. Y. 107, 45 N. E. 351). There, the plaintiff was almost run over by the negligent driving of the defendant, and as a result of fright became unconscious and suffered a miscarriage. Again, as in the blasting cases, the lower court was against artificial distinctions, and in favor of a scientific advance. "The fact that there was a mental cause for the injury clearly traceable to the

negligent act, ought not to relieve the defendant is no accident within the meaning of the policy, befrom the consequences."

The decision, however, was reversed in the Court of Appeals. Several reasons were assigned. The first is that as no recovery can be had for fright alone, then on principle none should be allowed for the physical injury that may result therefrom. The fact, however, is overlooked that mere nervous shock is exempted, because there is no basis for the assessment of damages. A second reason was that, as the injury could not have been reasonably anticipated, the plaintiff's case did not fall within the rule as to proximate cause. That the defendant may not have foreseen just this outcome of his negligent act is true. But his responsibility must depend on his presumed knowledge that the natural and probable result of his acts would be injury to a class of persons of whom the plaintiff was one. Had there been actual impact there would have been no doubt of a recovery. Moreover, if the plaintiff had sprang from one danger into another and been injured, her right of action would have been assured, even though by remaining still she would have suffered no harm (Warren v. R. Co., 40 N. E. 895; Wilson v. R. Co., 3 N. W. 333). It is scarcely clear why the defendant should be presumed to foresee injury in either of the above cases, and not in the principal

case.

cause this is due to the mental state of the sufferer and not to external causes." The court, however, held for the pl intiff, and remarked, per Kay, L. J., "It seems to me as clearly an accident as if he had been thrown down by the passing train." It is clear that the principle of both these exceptions overthrow the rule itself. They clearly recognize that between a mental shock and a physical injury there may be both in law and in fact a causal bond.

In the law of real property, the rules governing the use of percolating water have undergone a pretty development. The initial case upon the subject is Acton v. Blundell (12 M. & W. 324 [1843]). The action was for draining one well by the sinking of a second; and both the counts and the opinion show that the gravamen was not the bare cutting of the underground sources of supply, but the actual drawing off of the water already collected. The court, however, in holding for the defendant, laid down the broad rule that the right to the enjoyment of underground water is not the same as that which applies to surface streams. Two reasons were assigned: First, that percolating water was one with the soil, and hence belonged to the owner of the premises; second, that as such water does not flow openly in sight, no man can tell whence it comes and whither it goes. The rule was a prime example of the love of the early law for palpable evidence only; but, under the pressure of a more scientific knowledge and of modern hydraulic inventions, such a sweeping principle was bound to be modified. The first step toward a greater freedom was the case of Dickinson v. Grand Junction Canal Co. (7 Exch. 282). The defendant was a cor

The controlling reason in the mind of the court, however, seems to be that in law there can be no causal connection between a mental shock and a physical injury. The procession of cause and effect is looked upon as broken by the intervention of the mind. The plaintiff's difficulty is, says the court, that "there was no immediate physical injury." Now the test of the proximate cause is the continu-poration under act of parliament. Upon its own ity of the events, and the absence of a new and independent cause. This new cause must be one of itself adequate to inflict the given injury. In the case before us the only intervening cause that can be suggested is the mental state of the sufferer. But by hypothesis this state is the immediate result of the negligence, and as the mind and body, accord-, ing to the now common knowledge, react upon each other, the succession of events are so grouped together as to form a natural whole. The courts, however, are unwilling to admit that their definition of a proximate cause is fulfilled. They have not wholly freed themselves from that leaning toward physical and tangible facts which is the legacy of the early common law. The science and sense of the matter has, however, had its influence. We have already seen that one may recover for a fright which, while not throwing the sufferer into convulsions, leads him to leap over a precipice. Again, in Pough v. B. B. & S. C. Ry. Co. (1896) (2 Q. B. 248), one, who was incapacitated for work as a result of a nervous shock at the approach of danger, was allowed to recover under the terms of a policy insuring "absolutely for all accidents." The counsel argued with apparent logic, that, "When the effect produced is only due to fright or nervousness there

land it had dug wells and set up a large pumping station, by which water was raised and carried some distance to supply a canal. A part of this water was drained by percolation from the neighboring river, and the rest was mere underground flow which had not yet reached a defined surface channel. The court held for the plaintiff as to both portions of water. Thus, at a blow, Acton v. Blundell was cut in half, as it were, and confined to cases where the reservoir or goal of the percolating water was not on the surface but under ground. This was in 1852. Seven years later, Chasemore v. Richards (7 H. L. C. 349) came before the house of lords. The facts were the same with the Dickinson case save that here the diversion was wholly of the subterranean flow, and the water already in the surface stream was not touched. The house, Lord Wensleydale practically dissenting. overruled the law as laid down in 1852, and returned to Acton v. Blundell. "The principles which apply to flowing water in streams or rivers are wholly inapplicable to water percolating through underground strata, which has no definite course, no defined limits, but which ocz.s through the soil in every direction." Thus the Dickinson case was itself cut in half, and Acton v. Blundell established as governing all flowing water