backs, and the practice works out well enough in controversies where purely individual interests are represented by counsel. This is not the situation in cases such as the one before the Massachusetts court. The issue submitted to the court in fact was the issue as determined by the District Attorney of Worcester and counsel for the Boston and Maine Railroad. In truth, the issue was between the Court and the Legislature. In such a case either the legislative judgment should be sustained if there is "no means of judicial determination" that the legislature is indisputably wrong,1 or the court should demand that the legislative judgment be supported by available proof.62 It would seem clear that courts have inherent power to accomplish this by indicating the kind of argument needed to reach a just result; or even by calling for argument from members of the bar officers of the court of particular equipment to assist in a given problem.3 If legislation be necessary New York furnishes an example in its recent enactment authorizing the courts to request the attendance of the attorney general in support of an act of the legislature when its constitutionality is brought into question.64

These, after all, are only expedients. Fundamental is the need that the profession realize the true nature of the issues involved in these constitutional questions and the limited scope of the reviewing power of the courts. With the recognition that these questions raise, substantially, disputed questions of fact must come the invention of some machinery by which knowledge of the facts, which are the foundation of the legal judgment, may be at the service of the courts as a regular form of the judicial process. This need has been voiced alike by jurists and judges. Once 61 Hadacheck v. Sebastian, 239 U. S. 394, 413 (1915). Price v. Illinois, 238 U. S. 446, 452 (1915).

66

62 Professor Ernst Freund, "Constitutional Limitations and Labor Legislation," 4 ILL. L. Rev. 609, 622.

63 It is interesting to note that the chief arguments in the series of cases beginning with the Muller case were made by an amicus curiae, Mr. Louis D. Brandeis, in behalf of the National Consumers' League.

64 NEW YORK LAWS, 1913, ch. 442, p. 919.

65 See 28 HARV. L. REV. 790.

66 Professor Roscoe Pound, in "Legislation as a Social Function," 7 Pub. Am. Soc. Soc'y, 148, 161: "In the immediate past the social facts required for the exercise of the judicial function of law-making have been arrived at by means which may fairly be called mechanical. It is not one of the least problems of the sociological jurist to discover a rational mode of advising the court of facts of which it is supposed

the need shall be felt as the common longing of the profession the inventive powers of our law will find the means for its satisfaction. Felix Frankfurter.

HARVARD LAW SCHOOL.

to take judicial notice." So (in dealing with a somewhat similar problem) Judge Learned Hand, in Parke Davis & Co. v. Mulford & Co., 189 Fed. 95, 115: "How long we shall continue to blunder along without the aid of unpartisan and authoritative scientific assistance in the administration of justice, no one knows; but all fair persons not conventionalized by provincial legal habits of mind ought, I should think, unite to effect some such advance." Cf. also, Steenerson v. Great Northern Ry., 69 Minn. 353, 377, 72 N. W. 713, 716 (1897)

PROPERTY IN CHATTELS

I

PROPERTY IN THE TRESPASSER

Is it true that the common law ever thought of a trespass as conferring the absolute property in the chattel on the trespasser? 1 No such result would have followed from the application of disseisin to chattels, for the doctrine of ownership which Professor Ames treats under that head is admittedly a doctrine of divided ownership with the right to possession in the disseisee and the present enjoyment and right of alienation in the disseisor. It is only by combining disseisin with the fact that trespass was not an action for the specific recovery of property and limiting the disseisee's remedy to the action of trespass that any such result is reached.3 Nowhere in the books is to be found any intimation of such absolute change of property by a trespass, and it is so counter to fundamental notions that not only have prevailed from the later Middle Ages to our own time, but seem to have been just as fundamental in the earlier law of which Pollock and Maitland treat, that the burden of proof is heavy on him who would establish it even for a time.

It is not until the reign of Edward III that we find the "property" in a chattel ascribed to a trespasser or thief. If at that time there was a right to the specific recovery of chattels taken by way of trespass as there was admittedly of chattels taken by way of theft, the notion that this "property " of the trespasser was an absolute property must fall. "Our common law . . . seems to have started in the twelfth and thirteenth centuries with a stringent prohibition of informal self help," and Britton supposes a case 1 Ames, "Disseisin of Chattels," 3 SELECT ESSAYS IN ANGLO-AMERICAN LEGAL HISTORY, 549.

2 Ibid., 543.

3 Ibid., 549.

4 2 HISTORY OF ENGLISH LAW, 2 ed., 168 n. 2.

5 AMES, 3 SELECT ESSAYS, 542.

6 2 POLLOCK & MAITLAND, HISTORY OF ENGLISH LAW, 2 ed., 169.

where on an appeal for stealing a horse, the appellee proves the horse his own and thus escapes the gallows but loses his horse because he has had recourse to force rather than to judgment." In 18 Edward III, however, a plaintiff in trespass urges that "even though the mine was dug in his [the defendant's] freehold, as he says, nevertheless through our having the lead in our hands the property in it came to us, in which case he could not lawfully take it away from us, but would be put to his action." But the point is not allowed. Proprietary pleas were not allowed in trespass, but it seems doubtful whether even from the first a jury in such a case would have found there had been a taking of the goods of the plaintiff.

What Maitland says as to real property that by the death of Edward III the common law seems to have taken its final form, that in general possession was not protected against ownership,' seems to have been as true in the case of chattels as in the case of land. It is said that it was during the fourteenth, fifteenth, and sixteenth centuries that the right of self-redress received its greatest expansion.10 Littleton tells us that descent did not cut off a right of entry to a chattel real," and this has been applied also to goods.12

Nor is it at all certain that there was not a right of specific recovery in the greater number of cases of trespass through the action for a chose adirrée in the local courts.13 It was the civil action that corresponded to the action for a theft 14 and the limitation of actions of trespass in the King's courts to cases where the chattel was worth forty shillings must have made the relief in the local courts in cases of trespass all important.15

Until within the last century 16 the law as to the specific recovery of chattels seems to have been much the same as it was in the

7 I NICH. BRITT. 115, 116, cited 2 P. & M., 2 ed., 168.

8 Y. B. 17 & 18 Edw. III (R. S.) 628.

9 4 LAW QUART. REV. 289.

10 28 LAW QUART. REV. 266.

11 CO. LITT. 249 a.

12 COM. DIG. BIENS (E).

13 Professor Ames thinks on the whole that there was not. "History of Trover," 3 SELECT ESSAYS, 438.

14 2 P. & M., 2 ed., 161. There was some doubt as to whether it lay in case of a wrongful taking, 161 n. 4.

15 See 2 P. & M., 2 ed., 150.

16 Ibid., 154.

early years of Edward III. If anything the chances of specific recovery had been lessened, for although in detinue one was not sure of recovering the property, as the defendant had his option of returning the property or paying its value, still there was more probability of the return of the chattel than in trover, and trover had largely superseded detinue until it was revived by the Common Law Procedure Act of 1854, giving the successful plaintiff a definite right to the property.17 Replevin in practice was still usually confined to cases of distress and there was a question in 1856 as to whether it lay in any other case.1 18

As far as specific recovery is concerned, there would probably be as much ground for arguing that in 1800 a trespass effected an absolute change of property in a chattel as in 1326. But if anyone in 1800 had asked a lawyer whether a trespasser gained the absolute property in the chattel by his tort, there is little doubt that he would have responded in the negative just as had the judges of the 1400's,19 and their proof would have been his proof that replevin lay in such a case. This concurrence of replevin with trespass would have been largely if not quite theoretical. But while Professor Ames, it would seem correctly, traces this theoretical concurrence back as far as the institution of the writ de proprietate probanda 20 which allowed of the continuance of replevin proceedings if property were found in the plaintiff, notwithstanding a claim of property by the defendant, he would seem to have been in error in placing the institution of that writ in the reign of Edward III rather than in that of his predecessor.21 He doubted 22 the correctness of the reference to it as of 2 Edward III, Iter North,23 on the ground that Stonore and Shardelowe, to whom apparently reference is made, were not then judges, but Stonore was apparently at that time a judge of the Common Pleas,24 and Shardelowe, although not yet raised to the Bench, may well have been on circuit, and there is an express reference to the writ in 19 Edward II.25 The reference in the Abbrevatio Placitorum 26 to an attachment proceeding for a

24 See Foss, BIOGRAPHICAL DICTIONARY OF THE JUDGES OF ENGLAND. 25 FITZ. ABR. REP. 26.

618 EDW. II, Ab. Pl. 348-349, rot. 17, quoted in AMES, LECTURES, 67.