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ground of doubt and argument with which the law must be surrounded, like an unknown territory when it is first partially discovered.'
Bentham himself, the greatest practical law reformer, the predecessor of Austin in analytical jurisprudence, attacking the English law as "confused, indeterminate, inadequate, ill-adapted and inconsistent, as to a vast extent, the provision or no provision would be found to be that has been made by it for the various cases that have happened to present themselves for decision,” nevertheless says: "Traverse the whole continent of Europe, ransack all the libraries belonging to all the jurisprudential systems of the several political States, add the contents together, you would not be able to compose a collection of cases equal in variety, in amplitude, in clearness of statement, in a word, all points taken together, in constructiveness, to that which may be seen to be afforded by the collection of English reports of adjudged cases."
Doubtless, as Chancellor Kent says, the great proportion of the rules and maxims, which constitute the immense code of the common law, grew into use by gradual adoption, and received from time to time the sanction of the courts of justice without any legislative act or interference. It was the application of the dictates of natural justice and of cultivated reason to particular cases. When, therefore, heretofore undeclared rules are announced in judicial decision, this cannot accurately be called "judicial legislation,” since the application of the already existing truths of science, required by changed circumstances, can in no sense be held to be a new creation. Of course the decision in Taltarum's case, by which the statute De Donis was substantially abrogated, is open to that objection, though that decision had been preceded by the general judgment that it ought to be made, and was sustained, when made, by its substantial benefit to the community. But, in the lapse of four centuries, the boundary between making and administering law, has become perfectly clear, and universally respected, yet it is in the decisions of courts upon actual states of fact that the central principles of legal conduct are chiefly to be found, and to them in a much larger degree than to legislation is to be attributed the existing body of our law.
And naturally, since, as paraphrased from Mr, Reeve, the common law is the custom of the realm, on which the courts of justice exercise their judgment, declaring, by their interpretation, what is, and what is not, that common law. This custom consists of those rules and maxims concerning the persons and property of men, that have obtained by the tacit assent and usage of the people, being of the same force as the acts of the legislature, the consent and approbation of the people being signified by their use and practice of it.
Or as is said by another: “What governs the manners of men toward each other? It is the common law of social intercourse. What constitutes the habits and customs of a country but a common law, gradually growing with civilization, and always accommodating itself to the situation of the people? Nor is the common law of jurisprudence less pliable. It is one of its excellencies that it is capable of change, of modification, of adapting itself to new situations and varying times, without losing its original character, its vital principles, its most useful institutions."
Whether, through legal fictions introducing new rules surrepti. tiously or through the doctrines of equity supplemental to, but not superseding the common law, or through the exposition and application of the common law itself, judicial action has been, and must necessarily be, the most prolific source of growth in the law.
The entire system which constitutes the law of common carriers is founded on the custom of the realm as applied by Lord Holt in Coggs v. Bernard, though the carriage by land and sea of to-day was not in the mind of the great judge who pronounced that opinion.
So the recognition of veracity as a distinct legal principle, in Pasley v. Freeman, is the basis of the redress so frequently accorded in cases of false representation.
Mitchell v. Reynolds discussed and applied the rule of the common law, that contracts unreasonably in restraint of trade are void, and since that day that central principle has been expanded to meet the exigencies of the time.
Perpetuities, combinations to lower or to raise wages, contracts to limit competition or to create monopolies, are all found to be within the elastic grasp of the common law, and subject to judicial determination in the application of old principles to the new states of fact, inevitably resulting from the ever Tarying course of events.
In Lickbarrow v. Mason, Mr. Justice Buller, declared Lord Mansfield to have been the founder of the commercial law of this country,” and this commendation that illustrious magistrate deserved by introducing his improvements by way of judicial decision rather than by attempting to proceed by legislation.
Of course courts cannot and do not decide against the letter of the written law, but, as M. Portalis remarks in the preliminary discourse to which I have referred, "It is for the magistrate and the jurist, penetrated with the general spirit of the laws, to administer their application,” and the general maxims of right being fixed, and general principles fruitful in consequences established, their enforcement in the settlement of the question arising in each particular instance, is necessarily remitted to judicial arbitrament.
It is correctly stated that "every time the result of a number of cases is expressed in a formula, and that formula becomes so stamped with authority
that the courts grow disinclined to allow its terms to be revised on a mere appeal to the precedents upon which it originally rested, then, under such circumstances, there is pro tanto a codification.” And however essential to the
study of the principles of law, in the abstract, scientific classification may be, the attempt to classify legal principles scientifically by statute, to divide law on any fixed theory of right, is unnecessary and premature.
Complaint is made of the accumulation of reports, but what art, what science, is not subject to the reproach of multiplying books ? And in what can excess be better tolerated than in ours ? Besides, “some books,” according to Bacon, "are to be tasted, others to be swallowed, and some few to be chewed and digested; that is, some books are to be read only in parts, others to be read, but not curiously, and some few to be read wholly and with diligence and attention. Some books also may be read by deputy.” It is unnecessary in the application of settled legal principles to cite a library. Reports are necessarily multiplied by the increase of cases to be adjudged in the progress of invention and enterprise and society. To a certain extent of course, the labor of the industrious lawyer is increased, but "the labor we delight in, physics pain," and the search for authorities to sustain a particular contention, is not so exbaustive in this day of admirable digests as to justify legislative interposition. Nor is there that degree of lack of precision in or considerable disagreement among the decided cases on any given question which is often so confidently asserted. The explanation of the larger part of the difficulties arising in cases submitted to judicial determination, is to be found in the remark of Blackstone, that "experience will abundantly show that above one hundred of our law suits arise from disputed facts for one where the law is doubted of.” If that were true in his time, it is most assuredly so in ours. Facts do not tend to simplify themselves, and no facts are so intricate as the facts of human nature.
And hence the difficulty in applying accurately the general principle of one case to the new facts of another, and the importance of looking to the principle of a decision rather than the manner of the particular argument used to support it, a difficulty legislation would be ineffectual to remove.
The law is, in truth, daily growing in the direction of method, simplicity and promptness in administration, and from time to time judicious legislation comes in to assist this natural and almost insensible movement.
Mr. Justice Matthews, in an address of great literary excellence, says that “the direct and specific function of the profession in the social and political state, in its progress in civilization, is to formulate its progress into laws and institutions, and superintend the gradual perfection of its organization, according to the idea of
It cannot be doubted that the administration of the law is the real school of jurisprudence, and that it is to the purity and ability of the bar and the bench we are to look for the attainment of justice, rather than to the most perfect codes in the world.
D'Aguesseau wrote: "The order of advocates is as ancient as the office of the judge, as noble as virtue, and as necessary as justice."
In the case of Garland, Mr. Justice Field, delivering the judgment of a majority of the court, said, attorneys and counselors are officers of the court, admitted as such by its order, upon evidence of their possossing sufficient legal learning and fair private character.
They hold their office during good behavior, and can only be deprived of it for misconduct, ascertained and declared by the judgment of the court after opportunity to be heard has been afforded.”
And Mr. Justice Miller, in the same case, said: “It is believed that no civilized nation of modern times has been without a class of men intimately connected with the courts and with the administration of justice, called, variously, attorneys, counselors, solicitors, proctors and other terms of similar import.
They are as essential to the successful working of the courts as the clerks, sheriffs and marshals, and perhaps, as the judges themselves, since no instance is known of a court of law without a bar."
Considering the importance of the function the lawyer has to discharge, that the bar is intended for the assistance of the court as well as the suitors; that in fact, in the administration of justice, the bench and the bar are mutually dependent on each other, it is impossible to overestimate the importance of the highest standard of professional education and professional honor. If the law is as Choate said it was, “not the offspring of will at all, but the absolute justice of the State, enlightened by the perfect reason of the State
enlightened justice assisting the social nature to perfect itself by the social life," how obvious it is that to cherish loyalty to law, and reverence for the laws, is the highest and most responsible of duties. The great Roman jurist thought that the citizen who obliged men to virtuous actions by the authority of laws, was certainly to be preferred to the philosophers, who could scarcely persuade a few by the force of their eloquence; “for which of their exquisite orations," exclaims he,"is so admirable as to be entitled to be preferred to a well constituted government, public justice and good customs ?”
In pursuit of one of its declared objects, "to facilitate the administration of justice,” this Association has heretofore recommended, and I avail myself of the office your partiality has conferred upon me, an honor I thoroughly appreciate, and for which I beg to express my sincere acknowledgments, to again recommend the expression of your desire for such legislation by Congress, as will tend to relieve the Supreme Court of the United States of the accumulation of cases incumbering its docket, and at the same time furnish additional judicial force in the various circuits. The late David Davis, whose memory it gives us so much satisfaction to honor, had given to this subject great attention, and during the term of his distinguished service in the United States Senate, succeeded in passing through that body, a bill calculated to attain these results. This was modeled upon our Appellate Court system, and I suggest to the Association that it again press the subject upon the attention of Congress. The need is most pressing. From less than three hundred cases in 1858, there are over thirteen hundred on the calendar at the present term, of which more than four hundred cannot be disposed of. The withdrawal of causes depending merely on citizenship is out of the question. The dispensation from the discharge of circuit duties, so that the annual term could be lengthened, would probably be inadequate, and is objected to on other grounds.
The proposal to enlarge and divide the court, bas (as I think properly) not met with favor. The legislation which Judge Davis sagaciously sought to bring about, affords the most efficacious remedy. În the same connection, the condition of the Supreme Court of our own State in being compelled to hold six terms a year in three different divisions, should not pass unnoticed. I recommend that the Association, at its present session, urge upon the attention of the General Assembly the necessity and desirability of the consolidation of the terms of the court at one place, and that appropriately the Capital of the State. The time expended in these frequent journeys, the additioval expense to which the members of the court are subjected, the want of sufficient personal inter-communication in discussion and consideration, the impediments and delays in the prosecution of causes before that tribunal, are all reasons which render a change in this regard most devoutly to be wished. Nor should the increase of compensation to these, the most important and the most laborious of our public servants, the members of the Federal and State judiciary, fail to receive attention. Remember that upon the conscientious judge are imposed the cares of everybody's business except his own. I trust that not only through official action, but through the exertion of our members as individuals, reforms of such manifest necessity will be brought about.
In the address of Judge Davis, two years since, the importance of the right of trial by jury was discussed, and in the succeeding address by my immediate predecessor, Mr. Edwards attributes much of the difficulties in this regard to the indisposition of the best men to serve in the capacity of jurors. I venture to ask the influence of the Association in support of all legislative measures intended to bring about reform in the matter of the selection of jurors, and in its bearing upon the elevation “of the standard of integrity and honor in the profession," to suggest that too great rigor cannot be exercised toward any member of the profession who is in any way party or privy to an attempt to influence a jury by gifts, promises or any kind of external influence. The corruption of jurymen is not a new thing. In the sixteenth century there were men who made a trade of serving on juries and selling their verdicts, and they