Page images
PDF
EPUB

statute. These statutory provisions were not a mere restatement of the common law. They revised it and radically reformed it. The similarity to the process

by which the Justinian reform of the Roman law was accomplished is striking, although the result of the latter was more coherent and comprehensive and involved a much greater time in preparation than the somewhat piecemeal process by which the English reform was effected. In the Roman Empire under Justinian and in France, commencing under Louis XIV and ending under Napoleon, the arbitrary character of the government made it possible to adopt the scientific method of selecting the most eminent lawyers, judges and scholars and entrusting to them the entire work of preparing an authoritative code of law. The difficulties in proceeding in that manner in a country having a popular form of government are many and probably insuperable. In any event, the most practical way, as was demonstrated in England, is to proceed step by step and postpone a comprehensive codification until after the most pressing reforms have been accomplished.

Such, then, has been the experience of the great nations of the world which have attempted on a scientific basis to make laws which would assure to their citizens such justice as it is possible to obtain through the instrumentality of human institutions. It affords a useful lesson to such of our citizens as choose to study its significance.

Dean Pound, noted for his erudition in the history of law administration, has said in a generalization somewhat broad, that we are practicing law in this country according to the archaic methods prevailing in England

in the Eighteenth Century. In some states, notably New York, anachronistic rules relating to pleading, evidence and practice have gradually but sporadically yielded to some extent to modern requirements; but the improvement has been slow and unsystematic. Neither in New York nor elsewhere have legislatures been willing to trust the courts very extensively with the highly important function of enacting rules of procedure, and they have continued to attempt by statute to regulate minor matters until our Codes of Procedure have continued to be of absurd bulk and full of minute classifications, while the time of the courts has been occupied to an intolerable extent in attempting to construe legislative language, frequently not very lucid. Meantime the honest practitioner despairs of mastering the mass of decisions on petty matters, the tricky lawyer and his complaisant client revel in the opportunities for delay which often defeats the ends of justice, and the litigants are subjected to enormous expense in a technique having no relation to the principles of justice.

If Dean Pound's statement is applied to substantive law, it needs some qualification. By revising our statutes from time to time we have got rid of many of the rules which were to be traced back to a feudal origin and have appreciably made the law conform to the needs of modern conditions of life. In some branches of the law, as, for instance, in corporation law, we have had almost a clean slate on which to develop a system which, in the modern sense, scarcely existed at all in England in the Eighteenth Century.

Laymen complain because of the uncertainties and complications of our law. But the failure properly and promptly to administer it is far more potent in causing

injustice; and that has always been so in the development of our institutions. Some of the most important features of the Anglo-Saxon ideas of civil liberty have been effected by reforms in what was originally mere procedure. In his Constitutional History of the United States, Mr. Thorpe goes so far as to say that "every fundamental of government has been at some time an administrative measure." I may mention two examples tending to support the generalization. The writ of habeas corpus, which could be obtained by any citizen who was deprived of his liberty to compel the public official detaining him to show that his detention was justified by law. The right to obtain the writ did not enlarge or diminish the substantive rights of the individual citizen, which in terms were assured to him in 1215 A. D. by Magna Carta, extorted from King John, which provided that no freeman should be seized or imprisoned "save by the lawful judgment of his peers or by the law of the land." But the right thus created was not made secure until the adoption of the petition of Right and the passage of the Habeas Corpus Act of 1679; and the latter merely created a method of procedure which had not before existed. The same may be said of the Libel Act, introduced by Mr. Fox in 1792, which provided that trial procedure in libel cases should require that the question whether or not a writing was a libel should be decided by a jury instead of the judge. To this change is to be attributed the firm establishment of the fundamental principle of the liberty of the press.

And so, while we need to have the uncertainties of our substantive law removed by both a scientific restatement and a thorough revision which will bring it abreast of modern requirements, the most pressing need is to re

form our procedure, both that which precedes and that which regulates a trial. In spite of numerous but occasional improvements, we are still wallowing in a morass of complicated pleadings, of archaic rules of evidence tending to impede, more than in any other so-called science, the investigation of truth, and of trial acrobatic performances by counsel (and sometimes by judges), instead of making the conduct of a law suit a serious effort to ascertain the truth and mete out justice.

What I have described exists to a greater or less extent throughout this country in both state and federal courts. But the situation is far from being so desperate as that which existed in England at the beginning of the Nineteenth Century. If the people of the forty-eight states of the Union could all be made to see, as Justinian and the people of England were after many years made to see, that their laws and judicial procedure could be reformed so as to ameliorate the existing conditions, the task would proceed. But the insufficiencies of the law do not touch the people closely enough or frequently enough to excite their prompt and active interest. When they do come in disagreeable contact with the law or its processes they are inclined to tolerate them as among the evils to which human flesh is heir,-something they do not understand and cannot amend.

But a number of things point to the conclusion that we have entered upon an era of agitation and effort which is bound in due course to bring improvement, and in this reform, if we would succeed, we must be guided by the spirit of moderation. Bentham observes:

"The man, who is so narrow in his views or so impulsive in the matter of reform that he would subvert or

deride a general system of law, is not worthy to be heard at the bar of an enlightened public. Who can set forth its benefits-I do not say under the best government, but under the very worst? Do we not owe to it all we possess of security, property, industry, and abundance? Do we not owe to it preservation of the peace, the sanctity of marriage, and the refining influence of family ties? The good which the laws produce is ever with us, every day and every hour; while the evil is but casual and fleeting. But the good is enjoyed unperceived, without being referred to its source, as if it came in the ordinary course of nature; while the evil is acutely felt, and, in describing it, suffering, spread over vast space and a long course of years, is focussed by the imagination on a single point. What abundant reasons for mistrusting exaggerated complaint!" (Bentham's Theory of Legislation, Vol. 1, p. 207).

In America we are in some danger from "exaggerated complaint." Mr. Langdon Mitchell, in an article on "The American Malady" mentions a sort of clinical examination of American civilization made recently by thirty critical essayists, and sums up their conclusion thus: "Everything all wrong-next nation please." And thus some people think of law administration in America. But Mr. Mitchell likes American life "for many of the same reasons for which the sailor likes what he calls dirty weather; there is, in our state of affairs, something chaotic and adverse which calls for action and provokes high spirits." "Dirty weather" is at least in sight in the administration of justice, but let us hope that the American people under the leadership of the bar will so direct the ship as to avoid the impending storm.

Dr. Pritchett, the President of the Carnegie Foundation, in Bulletin No. 15, has with fair accuracy expressed the lay opinion in America thus:

« PreviousContinue »