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Passing to the latter part of my subject - curative acts — I shall briefly speak of the same only in so far as acts of this nature bear upon the matt
of record notice. Laws have been passed by our own and other states providing that deeds and conveyances of real property, although not executed and acknowledged as by law required to entitle them, when recorded, to the force and effect of constructive notice, have had such force and effect given to them by curative acts, except as to vested rights. Curative acts have also been passed in this and other states of a more sweeping nature by validating otherwise invalid instruments of conveyance.
Curative acts of the nature first mentioned I believe are not only demanded as a matter of justice, but do not operate to prejudice the just rights of any one. The constitutionality of such laws is now firmly established, the ground work of their constitutionality being that they do not interfere with vested rights, for no man has a vested right to do wrong. Such laws only do for the parties that which they either intended to do or should have done, or which it would not be inequitable to have done.
The law, while it demands obedience to its decrees and is unyielding and unbending in its operation, should yet be humane and practical in its provisions. As applied to the matter of record notice, I submit that it is a wise and proper provision to cure by an act, retrospective in its nature, defectively executed or acknowledged instruments of conveyance, when valid between the parties, by making the same constructive notice when so recorded.
Of course, care should be exercised to make such acts operative only as to defects of such a nature which it is right and equitable to thus remedy. It is true that laws of this character beget slovenliness and neglect in the execution of titles to realty, which in turn occasion defective titles. Still it is better to remedy these defects and wipe them out than to permit them to remain. The same reasons and objects, however, which govern the physician in administering his medicine should control the legislature in the enactment of these curative statutes. It is of doubtful wisdom whether such statutes should be enacted in the absence of some present need, some present defe to remedy, and not give to the same a prospective operation, and thus, as far as possible, prevent the recurrence of acts of negligence which occasion these laws.
The question is then presented: Is our present condition such that it now needs treatment? No relief has been given in this state to defectively executed or acknowledged conveyances of real estate since 1881, in the particular above mentioned, at which time conveyances defectively executed or acknowledged were by an act of the legislature of that year given the force and effect of constructive notice, when theretofore recorded. I believe that the time is now ripe for consideration of the question of the advisability of another act of the legislature of the same nature and effect, curing defects of the nature mentioned in the act of 1881, and in the same particular, and which have been recorded since the date of this prior statute.
This is a new state and, until the last several years, that care, in the very nature of things, was not exercised in the transfers of realty which has since prevailed. Regard should be had for previously existing conditions. Fifteen years have now passed since the healing art has been applied to conveyances of this character. This is a long probationary period, and I believe that the ban of punishment for sins of the nature of these-sins of omissionshould now be raised, and another act of a similar nature to that of 1881 should be passed. By so doing, violence will be done to the rights of none when intervening rights are properly protected.
BENCH AND BAR.
BY W. T. DOVELL, OF WALLA WALLA.
Every lawyer who desires the elevation of his profession should understand his duty towards the bench. Every judge who hopes for the maintenance of his dignity should know his duty toward the bar. These reciprocal duties are often forgotten, and I am inclined to think the bar forgets its duty more often than the bench. The secret of this is, we are too apt, under a practice like ours, to forget the position of a court and remember the personality of the judge. So easy is our familiarity that I presume there is not one of us, however inferior our legal attainments and small our experience, that does not frequently find occasion to remark the stupendous ignorance of some court or other.
I am making somewhat bold, but believe that I am well advised, when I say that a diagnosis of the common feeling of the bar toward the bench throughout our country sometimes approaches too near to contempt. We judge the opinion of a court as the utterance of a man or men, and, logically following, if that opinion is adverse, our contempt for it is only measured by our conceit. We may be discommoded exceedingly by what we believe to be judicial error, but should strive to keep in mind that it is the ruling of a court, not the expression of a man. The courtesy that I believe the bar owes towards the bench forbids criticism of its personal qualities. Remember that an adverse decision is not always the fruit of the judge's ignorance, and because he has so decided do not despise him. Charles Levre, in a burst of flippancy, once wrote this: “Poor wine may make very good vinegar, poor hay good manure, and, upon the same principle, a poor lawyer may lapse down into a very good judge.” A sentiment analagous to the one thus expressed seems to possess many attorneys.
The interests of clients can be best protected and justice best subserved by a maintenance of the proper relations between the bench and bar. This proper relation is exceedingly difficult of definition. Grievous wrong, or at least much discomfort, can be occasioned by the court that appears to be surrounded by a crust of dignity that forbids penetration to any human impulse. It is not necessary that common sentiment be cast aside when the judicial ermine is taken up. Tarquin, the stern Roman who sat in judgment upon his son and condemned him, was not a good judge or he would at least have changed the venue, and allowed the culprit to appear before some one that was at least human. He was so eager to be or appear just that he was unnatural. It is most unpleasant and effort killing to the member of a bar who stands before a bench and feels that he is communicating with a different species of the genus man men who did not and never had shared his feelings; men who had never thought as he had, doubted as he had, hoped as he had, or failed as he was sure he would. To some of us perhaps the memory is still very clear of the gratitude that has arisen when we first detected the glimmer of responsiveness and sympathy in a court.
But to the other extreme the court may go, and I have sometimes thought this extreme more dangerous than the other. It is well for the court to be in touch with the bar, but it is very
well indeed to be careful who does the touching. Courts are more apt to fail to temper mercy with justice than they are to fail to temper justice with mercy. The quality of mercy is not strained, but the quality of justice sometimes is, in which event the latter is much harder to dispense. The man or men who sit upon a bench should be that degree removed from those who appear at the bar as to inspire a never varying respect, a respect which it is very plain will carry and will pervade the common people in the form of respect for the law. No man properly respects the law who does not sufficiently respect the dispenser thereof.
Criticism of the bench by the bar cannot be too much abridged. Occasionally, in observing the attitude of the bench and bar of some courts I have seen, I have wondered which was really the greater fool — the fool the lawyer thought the court was, or the fool the court thought the lawyer was. So far has this freedom of criticism been carried that within the last decade an attorney of Colorado was cited for making remarks derogatory to the character of a judge. He boldly pleaded in his brief before the supreme court of that state that it is an “immemorial custom for reputable lawyers to curse judicial officers in this country." This assertion,
” whether true or not, was so poorly received by the court before whom it was made that the attorney was promptly disbarred.
It is a fact that should shock the ethical sense of every lawyer, that the supreme court of our nation, a tribunal that every lawyer, at least, ought to nearly venerate, has been grossly criticised, almost defamed, by men who have a license to practice. Men who are lawyers themselves make capital out of the rule enunciated by the supreme court of the United States in the income tax case. Among the mob such a sentiment, of course, finds applause. Demagoguery up to a certain limit may be legitimate, but it is not legitimate for any lawyer to defame by direct accusation or innuendo his bench of last resort. And when he does dare assert or intimate that the exposition of any principle they announce was induced by an influence that is not pure, unless he have at hand the proof to establish it, he is unprofessional, he is almost sacriligeous. Whatever the apparent weakness of any court — and perhaps you have noticed this weakness is more apt to become apparent to you after you have suffered an adverse decision — he is by virtue of his office alone entitled to the most profound respect and studious courtesy from the bar. On the bench he can command it, off the bench it should be most cordially given.
The duties of the bar to the bench have been to some degree defined by the courts. The right assumed by the court to protect itself by contempt process has been in many instances attacked. The federal supreme court has stated quite clearly the extent and limitations of this power in “ex parte Wall.,” to be found in 107th United States. The facts of this case are odd. A federal judge in a Florida district adjourns his court for the noon day meal. Proceeding back from his refreshment his post prandial reflections are interrupted and his eyes offended by the sight of a man hanging, eyes and tongue protuberant, from a tree in the courtyard. He is informed that one of the attorneys of his court instead of occupying the noon time recess as he should, has regaled himself by heading the lynching party. He cites the attorney for contempt. The attorney does not deny the charge; does not even attempt to abate