A certain Unna, daughter of Mord, has divorced herself for cause from her husband Hrut and has a claim for restitution of the dowry she had brought into his hands. Mord had endeavored to enforce this claim; but Hrut had appealed to the ordeal of battle, and Mord, who was an old man, was advised by his friends not to fight. Thus the case lapsed. After Mord's death Unna appealed to a kinsman, Gunnar, “a tall man in growth, and a strong man, best skilled in arms of all men," to take up her case. Gunnar takes advice of Njal, who was "so great a lawyer that his match was not to be found." Njal works out a scheme for summoning Hrut, which Gunnar follows implicitly. He disguises himself as a peddler and two of his friends as slaves. They ride together into Hrut's country, and Gunnar attracts general attention by eccentric conduct. He falls in with Hrut and is invited to Hrut's house. Gunnar pretends to come from the northern part of Iceland, instead of from the south-western, where he really lives and where Mord lived. But he says he has traveled all over Iceland and he has heard the people in the southwest talk of Hrut's controversy with Mord. He asks Hrut how the case could be re-opened and Hrut repeats the formula of summons. Gunnar repeats it after him, with numerous errors. Hrut repeats it again, and Gunnar finally gets it right. [The repetition of a formula a second or third time is a common thing in early contracts, and the object of Gunnar's errors seems clearly to secure a further utterance of the formula by Hrut.] Gunnar, having satisfied himself that he has learned the formula, asks Hrut "if that were rightly summoned," and Hrut ansvers that "there is no flaw to be found in it." Then Gunnar jestingly calls upon his companions seemingly slaves and incapable of bearing testimony, but in fact free men and competent witnesses-to witness how he has summoned Hrut "in the suit which Unna, Mord's daughter, has made over to him with her plighted hand." Then they all go to bed, but in the night Gunnar and his friends decamp secretly. When Hrut learns of the trick that has been practiced on him, he does not dream for an instant but that he is bound to appear in the Althing. And yet he has recited the formula of summons without serious intent, for the purpose of instructing an ignorant peddler; and a fraud has been practiced upon him in order to induce him to recite the formula and accept the summons. (G. W. Dasent, D. C. L., The Story of Burnt Njal, ch. 21, 22.) It was not only in early Germanic law that the intention was thus absolutely disregarded in contract, nor was it in early Germanic law only that fraud was equally disregarded. We find the same state of things in other primitive systems of law. When society is just emerging from a reign of violence, fraud is viewed with but little disapproval. It is often regarded as rather admirable than otherwise. Nor should this surprise us; for fraud, when it first appears, transfers the struggle for existence to a higher plane, from the plane of brute force to that of cunning. What is more surprising is that, in early law, duress is equally immaterial. When the Saxon Harold, shipwrecked upon the coast of Normandy, promised to recognize William of Normandy as the rightful heir to the crown of England and sealed his promise with an oath, Harold was not a free agent. He was captive and in peril of his life. Moreover, the special sanctity which his oath acquired by being spoken on a chest full of the most sacred relics was unknown to him; as far as that element of the obligation was concerned, he was a victim of bare-faced fraud; but William of Normandy maintained that this promise and oath of Harold's, tainted as they were with duress and fraud, were binding—and Catholic Europe seems to have shared William's view. Another illustration of the disregard of duress is afforded by the method formerly adopted in England to compel persons charged with crime to submit themselves to the judgment of a petty jury. It was held that their consent was necessary, and their consent, where not otherwise obtainable, was procured by the peineforte et dure. With the evolution of society, the law of course pays an increasing regard to the mental condition of parties entering into contract. In case of duress or intimidation it is indeed clear that the party who makes the promise means what he says. There is an act of will. If a man holds a pistol to my head, and asks me to sign a note, I have the choice between signing the note and having my brains blown out. If I sign the note, it is because I have chosen this horn of the dilemma, and choice of course means volition. This was recognized by the Roman lawyers, who said, "Coactus tamen volui"; and again, "Hoc maluisse videor." But equity, of course, strongly disapproves of such constraint, and makes such an act invalid. In the progress of social development, fraud also gradually becomes an object of disapproval, and equity interposes to protect the party who has contracted under a mistake, when this mistake was induced by the fraud of the other party. But even at modern law it is not possible to set aside every contract on account of error or mistake. It is often necessary to hold a man who has promised, though it be capable of proof that he did not mean what he said. The Romans said, indeed, “There is no consent on the part of him who is in error"; and English lawyers have said that there is no contract without a meeting of the minds; but neither at Roman nor at English law was this broad principle applied without many and important exceptions. In fact, all security would vanish from the transactions of daily life if, when one party has made an offer or given an acceptance, the law should attempt to go back of the obvious meaning of the declaration and upset the contract. It may be capable of proof that the one party meant something different from what he said; but if his mistake was not cognizable by the other party, it is a clear injustice to the latter to deny the existence of the contract. This is one point where law has to resist the encroachment of psychology. To introduce into the law of contracts too refined a system of psychological distinctions is to destroy the object of the law-justice. It would make it a medium for the most hateful kind of injustice, that which is wrought by the law itself. Again, in criminal law and in the law of torts, there is a point at which the law has to resist the encroachments of psychology and even of ethics, and to insist upon its own definition of intention. It is a rule of every highly developed system of law that there is no crime or tort without wrongful intention or, as the English phrase runs, without "malice"; but the conception of wrongful intention in law is not the same as in psychology or ethics. The intention to do that which the law regards as wrong is a wrongful intention, even where the party believes his act to be right. A very good illustration of the difference between the legal and the ethical view of intent is afforded by a police case which occurred in Berlin some years ago. A poor woman, marketing, received from a butcher a bad silver coin. She was not aware of its being spurious until she tried to pass it upon a grocer in a neighboring stall. It was there refused. The woman, unwilling to lose the value of the coin, and deeming it but fair that the butcher should take it back, returned to his stall, and, having made a slight additional purchase, tendered the bad coin in payment. The butcher was about to accept it without question, and to give her change, when the grocer, whose suspicions had been aroused by the woman's conduct, and who had followed her, called the butcher's attention to the fact that the coin was bad, and that the woman had just attempted to pass it off upon him, the grocer. The omnipresent Berlin policeman became aware of the trouble, and the woman was arrested. The police justice believed her story, but held himself bound to punish her. She had attempted to utter spurious coinage, knowing its character. It would be easy to go much further in analyzing the distinctions which exist to-day in the view taken of intention by the law, and that taken by the psychologist or moralist. It would be interesting to see how far the line is drawn at the same point in different systems of law at the present day, and how far they themselves differ. But the intended limits of this paper are already exceeded, and its prime purpose, viz., to show the disregard of intention in early law, and its only partial recognition to-day, is already carried out. METHODS OF INSTRUCTION AT AMERICAN LAW SCHOOLS. THERE II. Columbia College, in the City of New York. SCHOOL OF LAW. (From advance sheets of the Circular of the Law School.) HERE is no uniform method of instruction in this school. Each instructor is at liberty to pursue the method of instruction which, in his opinion, will be productive of the best results. At the present time three methods of instruction are used: First, the system of instruction by lectures with references to and the incidental discussion of cases. This method prevails in the courses in Public Law. Second, the system of instruction based on the study and discussion of some standard treatise, and the consideration of cases by way of illustration. This method prevails in a few of the courses in Private Law. Third, the system of instruction based on the study and discussion of cases. This is the method generally used in the courses in Private Law. In the first year, however, the study of cases in Contracts, Pleading, Torts, and Real and Personal Property, is preceded or accompanied by the study of a standard treatise. As the system of instruction based upon the study and discussion of cases seems to be much misunderstood, the following explanation of that system is given : It is proper in the first place to state what this system of instruction by means of cases is not. 1. It does not consist in the study of isolated propositions of law. 2. It does not proceed on the theory that the law consists of an aggregation of cases. cases. 3. It does not proceed on the theory that to learn law one must memorize 4. It does not proceed on the theory that law is to be taught or learned in a law school by the reading of cases merely. 5. It does not leave the student to deduce the principles of law from the cases by himself. The case system consists in putting into the hands of the student a number of cases on any given subject, taken not at hap-hazard, but selected by the professor with a view to developing the law on that subject. The theory on which this proceeds is that it is only by regarding law as a science that one can justify its being taught in a university, and regarding it as a science, the student should not only be encouraged to investigate the law in its original sources, but should be distinctly discouraged from regarding as law, what is, in fact, simply the conclusions of writers whose opinions are based upon material to which the student can be given access. The case system, then, proceeds on the theory that law is a science, and, as a science, should be studied in the original sources, and that the original sources are the adjudged cases and not the opinions of text writers based upon the adjudged cases. But the law is an applied science, and therefore to appreciate thoroughly the principle involved in a given topic, the student should deal with it in its application, and as he learns these principles in their application they are not a mere abstraction, but have assumed to him a concrete form, and he is prepared to apply them in mastering new problems. Instead of reading about principles, he is studying and investigating the principles themselves. Under this system the student is taught to look upon law as a science consisting of a body of principles to be found in the adjudged cases. The student is not simply given the case and asked to find out as best he can what it is, but each case is accompanied by an elaborate explanation and classification. In comparing the system of teaching by cases with the ordinary text-book system, it should not be forgotten that the decision of the court is not simply a judgment for the plaintiff or for the defendant upon a given statement of facts, but that the reasons therefor are given at length, and the opinion of the court giving the reasons for the conclusions reached, is really the only authoritative treatise which we have in our law. A system in which principles are studied in their application to facts would seem to combine in the highest possible degree the theoretical and practical. In no other way can a student so thoroughly acquaint himself with the methods used by judges in applying principles of law to the facts before them. It must be borne in mind that this method of teaching does not consist in lectures by the instructor, with reference to cases in support of the proposition stated by him. The exercises in the lecture room consist in a statement and discussion by the students of the cases studied by them in advance. This discussion is under. the direction of the instructor, who makes such suggestions and expresses such opinions as seem necessary. The student is required to analyze each case, discriminating between the relevant and the irrelevant, between the actual and possible grounds of decision. And having thus discussed the case, he is prepared and required to deal with it in its relation to other cases. In other words, the student is practically doing as a student what he will be constantly doing as a lawyer. By this method the student's reasoning powers are constantly developed, and while he is gaining the power of legal analysis and synthesis, he is also gaining the other object of legal education, namely, a knowledge of what the law actually is. It is obvious that the power which this practice gives him of analyzing the complicated facts of a case, and of clearly and concisely stating them, is what in no small degree distinguishes the good lawyer from the poor or indifferent lawyer. From the foregoing explanation it is evident: 1. That the system is not open to the charge of regarding the law as a mere |