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state of the popular mind to which I have referred, and pointing out what I believe to be the duty of the bench and the bar in dealing with the situation.
I want to admit in the outset that the administration of the law in this country is far from perfect. The system of pleading and practice in many states tends to delay, and to a complexity of technical issues which sometimes overwhelm and cover up the substantial issues which the parties came into court to litigate. But this is not the fault of the judges. They follow the practice laid down for them by the Legislature. Nor is it altogether the fault of the lawyers. They know the weakness of the practice acts and would soon correct them if invested with the power to do so. But they are looked on as a class with suspicion and distrust by the people and by their representatives in the Legislature, especially when they interfere in the framing of laws, and their recommendations either go unheeded or are misconstrued, with the result that new legislation is often worse than that which it has superseded. There is but little incentive in the results achieved in the past to induce concerted action on the part of the bar in the direction of needed amendment. I have an incident in mind in my state which illustrates the difficulty of securing intelligent action on the part of the Legislature. At the time the state was admitted into the Union the law provided for an appeal to the Supreme Court in all cases. This has been properly construed as providing for an appeal from final judgments in all cases. The Supreme Court, recognizing that the right of appeal might well be enlarged to include certain interlocutory orders, suggested to a member of the Supreme Court bar that he draft a bill and submit it to the Legislature, providing for appeals from orders granting or refusing injunctions, or appointing or refusing to appoint receivers. The member of the bar appealed to, drafted such a bill and caused it to be introduced in the lower house of the Legislature, taking care to explain fully the objects and purposes of the bill to the chairman of the judiciary committee. When this bill came to run the gauntlet of the lay mind in the Legislature, it was found to be partial and incomplete in that it was confined to two classes of interlocutory orders; whereupon, the limiting words were stricken out and the bill made to read that appeals should be allowed to the Supreme Court in all cases and proceedings. This could mean nothing more nor less than what the prior law meant, unless the court was prepared to hold that the new law necessarily implied an enlargement of the prior law, in which case the universality of its language would have required the allowance of an appeal from any order or decision, of any character, given or made at any stage of the action or proceeding. The Supreme Court could not see its way clear to an interpretation that would introduce a practice utterly subversive of all orderly proceedure in the courts of primary jurisdiction, with the result that the state limped along for a number of years under the old restricted appeal system.
Yet, undoubtedly it is the duty of the bar to continue its efforts for simplicity and directness in court proceedure to the end that justice may be made speedy and certain. At no time in the history of the law have members of the bar been more alive to their duty in that respect than at the present time, as the proceedings of the national and state bar associations attest, and if the lay mind would only recognize the singleness of their purpose, and co-operate with them in the reform advocated, the reproach of delay and an occasional miscarriage of justice through obstructive tactics, would soon be removed from the courts. That is as far as I am prepared to admit that there is any just ground for reproach, other than that inherent in any judicial system, however limited or guarded or hedged about. Men in judicial positions, like men in other public positions, will be weak and fallible. Any system must allow for that. But a system designed to play on the weakness of human nature, and to make judges cowardly and pusillanimous, cannot be an improvement on one that leaves them free to give the public the best that is in them in the way of courage and judicial poise and sound intellectual processes.
The assault on the courts is of comparatively recent origin. It arose suddenly and soon gained the proportions of a well-organized propaganda. Thoughtful men looked on it as mere incidental political eruption that would have its day and soon die down. Instead it gained ground rapidly and bid fair to sweep from their moorings in this country every conception which had been held before concerning the function of the courts, their relation to society, and their beneficent influence in conserving the ideal of a government of law. All at once, and without any cause that had not inhered in the administration of justice for hundreds of years, it was said that the courts, if not dishonest, were narrow and hide-bound, SO that justice was defeated, and that the only remedy was to make them or their decisions responsive to the popular will. While those who started the agitation may have been demagogues, the movement captivated the imagination of well-meaning men all over the country, some of them men of political eminence and great national influence. When such men could get their consent to depart from the traditions which had set English and American jurisprudence as a thing apart in the jurisprudence of the world, it is not to be wondered at that the masses of the people should listen to and follow them. And so infinite harm has been done, and it has been crystallized in the organic law of some of the states. The propaganda is still being carried forward, and it is being aided by the ignorant comments of the press on court proceedings, and to some extent by the thoughtless acquiescence of the bench and the bar. So far as the latter are concerned, no higher duty to the profession is imposed on them than to uphold public respect for the courts and to be vigilant in defending them against unjust aspersions; and it is that duty that I have taken
upon myself to perform today. I am conscious that what I have to say is partial and incomplete, and imperfect, but I submit it to my brethren of the legal profession confident that such as it is, and as far as it goes, it will meet with their approbation.
Every imputation against the integrity of the American judiciary, considered as a whole, I reject unhesitatingly and without reservation. I have been at the bar much longer than I like to confess-within three years of a half a century-and I have had the honor during that time of presiding in the judgment seat, and I know whereof I speak when I say that American judges as a whole are honest, conscientious, and high minded. We have had dishonest judges here and there, but they have never lasted long and have soon been driven from their high positions. The loathing and disgust with which they are looked on by the legal profession is an evidence of the high character of legal ethics and the attachment which the members of the profession feel for integrity, fidelity, and a rigid compliance with all honorable obligations. I need not enlarge on this feature of my subject in this presence. You all know that I speak the truth and within the bounds of moderation.
The judges of this country are not justly liable to charges of dishonesty. But I would run counter to your common knowledge if I were to insist that they were without their weaknesses. They are sometimes, I regret to say, cowardly and pusillanimous. Knowing the law, they lack the courage to pronounce it. I have no doubt in my own mind that the quality most essential in a good judge is the quality of courage. An ignorant judge may be informed by the industry of the bar, but a weak and timid judge is hopeless, however learned and accomplished, particularly in those crises which require the judge to stand out for the law in the face of an inflamed public opinion. Fortunately, the judges who are subject to this reproach are in a small minority, but as might be expected from the weakness of human nature, they are not, like our corrupt and dishonest judges, isolated exceptions. Society, however, invites to the making of weak and timid judges and thereby adds to their number. The judge who pursues the line of least resistance is courted and flattered by the press and the public. It is the stern and unbending judge, who rules the law as he understands it at all times and under all circumstances-in short, the really great judge—who receives the excoriation of the public press and the condemnation of the ignorant and unthinking in all the walks of life. Now it is the knowledge of these things which we as lawyers possess more fully than any other class, that should make us zealous in guarding against organic changes which will further weaken our judges, and against indiscriminate assaults on the judiciary which, if not met and resisted, will have the same tendency.
The assaults against the integrity of the courts have now nearly spent their force. Having no fuel to feed on they have practically
died out, with here and there a spark or a live coal in the dead embers, to evidence that the fire once existed, and that it may again be fanned into flame. The other menace, that of indiscriminate criticism, is ever with us. The press teems with it daily, and it is found in the mouths of men who are utterly ignorant of the philosophy of the law, or indeed of any other philosophy. Every miscarriage of justice is attributed to the judges of the courts. They are expected to cure every omission of the Legislature by construction. They must convict every person accused of crime who comes within either the letter or the spirit of the law, despite the rule of construction which is universal, I believe, in the jurisprudence of all civilized countries, that an act to come within the law must come within both its letter and spirit. They are to bend the law, however long and well established, to the ever-changing needs of society, and to show themselves a live and progressive element in the body politic. Even the Constitution, in their hands, must be a kaleidoscopic machine that shows a different combination of colors every time the slide revolves. In short, in the view of the newspapers, and of the public which receives its inspiration from that most uncertain fount of information, the modern American judge ought to be the equivalent of the cadi of a Musselmen village, who dispenses justice according to the natural promptings of an tutored mind. Every lawyer and every thoughtful man knows how silly and wrong and hurtful to society any such conception of the function of the courts must prove to be.
The ideal judge would be an automaton endowed with perfect reasoning powers, so that the law might be ascertained with mathematical precision and applied without the abberration of passion or prejudice. That human judge is most perfect who approximates nearest to this ideal. It is not for the judge to bend the law to meet hard cases. We all know that hard cases make bad law. It is for the judge to administer the law as he finds it to all cases, good, bad and indifferent, to the end that the law may be certain and definite, and not a shifting rule of conduct which no man can feel safe in following. It is the legislative, not the judicial function, to change the law or to make exceptions in its operation when substantial justice requires it. These are axioms in any system of jurisprudence which deserves to be called philosophical and which pretends to meet the necessities of a wellordered society.
Another axiom is that it is not the province of the judges or the courts to administer substantial justice or in fact to administer any kind of justice. It is their duty to administer the law. Whether the law will promote justice between litigants is for the Legislature to determine. Even the Legislature is not at fault if the laws enacted by it sometimes fail to provide substantial justice in all cases. Laws are necessarily broad and general, and it is impossible for the legis.
lative mind to foresee the infinite variety of circumstances which may arise for their application. And sometime when exceptions are foreseen, the necessities of the state require a general rule of human conduct to which the exception must yield, and the injured individual content himself with the benefit derived from sharing in the general good of a well-ordered society. Even where injustice is caused by a casus omissus which it may be assumed the Legislature will correct at the first opportunity, it is not for the courts to give relief in the interim. They have no legislative power, and it is better that individuals should suffer than that our governmental system be weakened and impaired by judicial usurpation. Above all, it is a most pernicious delusion to assume that substantive law can be moulded by the courts to meet new conditions arising in industrial or political life. The judge who essays to do that, instead of being praised, as he generally is by the press and public, ought to be censured. I am not now speaking of the application of the rule that the law ceases when the reason for it ceases. Every good judge ought to be mindful of that rule when considering the force of judicial precedents. Of course, the rule has no application to legislative or constitutional requirements. I am speaking of the judge who regards himself as a kind of a little special providence, charged with the duty of supplying the laws' ommissions out of his inner consciousness, and bending its substantive and essential provisions to meet what he considers the exigencies of modern society. Such a judge is an abomination.
The common law of England was an evolutionary growth, partly through legislation and partly through judicial exposition. It grew up when modern conceptions of the divisions of governmental power were not well understood. But it had become crystallized at the time of the Revolution, and such of the states as have adopted the common law have fixed it in their judicial systems as the rule of decision in all cases not provided for by constitution or statute. Now the common law lays down the only exception to the universality of its application in the rule before referred to, that the law ceases when the reason for it ceases. To that extent it is evolutionary, and to that extent only judges may disregard it. The idea that judges must be progressive and abreast of the times, and bend tne law to modern exigencies, is both silly and pernicious. They ought to be abreast of the law, and zealous to apply its principles to the promotion of justice; but they have nothing to do with the times. The times may require a change in the law, but it is no part of their duty to make the change. General Grant said in one of his state papers that the rigid enforcement of a bad law was the best way to secure its repeal or amendment, and in that wise saying he epitomized the duty of the executive and judicial departments of the government in the administration of the law.
That our commercial and industrial conditions have become in