But Tom knew better. found were the proper implements to use. From reading he knew what was the right course in such cases, and he called for case-knives. "It don't make no difference," said Tom, "how foolish it is, it's the right way - and it's the regular way. And there ain't no other way that ever I heard of, and I've read all the books that gives any information about these things. They always dig out with a case-knife." So, in deference to the books and the proprieties, the boys set to work with case-knives. But after they had dug till nearly midnight and they were tired and their hands were blistered, and they had made little progress, a light came to Tom's legal mind. He dropped his knife and, turning to Huck, said firmly, Gimme a case-knife." Let Huck tell the rest: He had his own by him, but I handed him mine. He flung it down and says, Gimme a case-knife." I didn't know just what to do - but then I thought. I scratched around amongst the old tools and got a pickax and give it to him, and he took it and went to work and never said a word. He was always just that particular. Full of principle. Tom had made over again one of the earliest discoveries of the law. When tradition prescribed case-knives for tasks for which pickaxes were better adapted, it seemed better to our forefathers, after a little vain struggle with case-knives, to adhere to principle - but use the pickax. They granted that law ought not to change. Changes in law were full of danger. But, on the other hand, it was highly inconvenient to use case-knives. And so the law has always managed to get a pickax in its hands, though it steadfastly demanded a case-knife, and to wield it in the virtuous belief that it was using the approved instrument. It is worth while to recall some of the commonplaces of legal history by way of illustration. One of the first difficulties encountered by archaic legal systems founded upon the family and postulating for every sort of legal, social and religious institution, the continuity of the household, was the failure of issue, the want of the son to perpetuate the household worship, whom religious and legal dogmas required. No one thought of superseding these dogmas, but their manifest inconvenience and injustice were avoided by the device of adoption. Presently a better way of disposing of property after death, without infringing upon ancient doctrines, occurred to some Roman. Why not sell his whole household and estate to the person upon whom he desired it to devolve? But if he so sold it, and the purchaser was an honorable man, the latter would carry out oral instructions at the time of the transfer as to the purpose for which it was made and the disposition to be made of the property. After this had gone on till every one had begun to employ the proceeding, a law of the Twelve Tables gave legal efficacy to the oral instructions, when the form of sale was had, and wills had come into being. A better example is to be seen in the Roman law of marriage. The religious marriage, which was the only one recognized by religion and hence by law, was not open to the plebeian. In consequence he did not have his wife in manus or his children in potestas, and his household had no standing before the law. The law was not altered. It was not enacted that there might be marriage without a wife in manus and a family without children in potestas, but purchase or adverse possession and the statute of limitations were resorted to in order to bring the plebeian's wife into manus in another way. Our own law furnishes many such instances. When the Anglo-Saxon king desired to extend the protection of his peace to some one, he took him by the hand publicly and made of him, for legal purposes, a minister or servant entitled to the king's peace which attached to members of his household. When wager of law had made the action of debt a worthless remedy upon simple contracts, wager of law was not abolished, but the courts found a trespass and a breach of the king's peace in failure to perform a promise, if only something had been given presently in exchange for it, and thus imposed upon our law of contracts the formality of a consideration. When the delay and formalism of real actions and the incident of trial by battle made them inadequate remedies, a fictitious lease and fictitious ejectment were resorted to in order to make another remedy meet the situation. When the hard and fast form of writ and declaration failed to provide for new cases of conversion of a plaintiff's property, the form was not altered, but the loss and finding were assumed from the conversion; so that we are able to read in an American report of the nineteenth century that the plaintiff casually lost one hundred freight cars and the defendant casually found them and converted them to its own use, as if it were a watch or a pocket book that had been lost. We are by no means so much wiser than our fathers as we sometimes assume. While we have few of the old fictions of procedure left, we can make new ones of our own upon occasion in the like spirit. The mode of reading bills to some of our state legislatures pursuant to constitutional requirements is in every way worthy to go down in history with ac etiam and quo minus. The doctrine of the presumed citizenship of stockholders of corporations, and hence of the corporations, for purposes of suit in the Federal courts, is worthy of the courts that found a breach of the king's peace in fraud and deceit. But it is not of fictions of themselves that I would speak. They soon get into the books and become part of the law as it is written. They mark where there was once a distinction between law in the books and law in action, and show one way in which the two have been brought into accord. They show where and how legal theory has yielded to the pressure of lay ideas and lay conduct. The current divergencies are not yet so marked. They escape notice. The fictions that are to mark them for future generations of jurists are in the making. But if we look closely, distinctions between law in the books and law in action; between the rules that purport to govern the relations of man and those that in fact govern them, will appear, and it will be found that to-day also the distinction between legal theory and judicial administration is often a very real and very deep one. Let us take a few examples. It is a settled dogma of the books that all doubts are to be resolved in favor of the constitutionality of a statute that the courts will not declare it in conflict with the constitution unless clearly and indubitably driven to that conclusion. But it can not be maintained that such is the actual practice, especially with respect to social legislation claimed to be in conflict with constitutional guaranties of liberty and property. The mere fact that the Court of Appeals of New York and the Supreme Court of the United States differed on such questions as the power to regulate hours of labor on municipal and public contracts, and the power to regulate the hours of labor of bakers, the former holding adversely to the one1 and upholding the other, while the latter court had already ruled the opposite on the first question3 and then reversed the ruling of the New York court on the second, speaks for itself. Many more instances might be noted. But it is enough to say that any one who studies critically the course of decisions upon constitutional questions in a majority of our state courts in recent years must agree with Professor Freund that the courts in practice tend to overturn all legislation which they deem unwise, and must admit the truth of Professor Dodd's statement: The courts have now definitely invaded the field of public policy and are quick to declare unconstitutional almost any laws of which they disapprove, particularly in the fields of social and industrial legislation. The statement still repeated by the courts that laws will not be declared unconstitutional unless their repugnance to the constitution is clear beyond a reasonable doubt, seems now to have become “a mere courteous and smoothly transmitted platitude.' 116 Departure from the legal theory at this point is leading to another change. The doctrine of the books is that an unconstitutional statute is simply a nullity. There never was such a statute. No legal effect whatever has been produced. But when in five years the courts of 1 People vs. Coler, 116 N.Y. I. 2 People vs. Lochner, 177 N.Y. 145. U.S. vs. Martin, 94 U.S. 400. 4 Lochner vs. N. Y., 198 U.S. 45. Green Bag, XVII, 416. "The Growth of Judicial Power," Political Science Quarterly, XXIV, pp. 193, 194. this country hold three hundred and seventy-seven statutes, or an average of over seventy-one a year, unconstitutional, it is obvious that such a theory becomes highly inconvenient. It is a natural consequence that a practice of recognizing what might be called "de facto statutes" is beginning to appear in one guise or another.1 Another example is to be found in those jurisdictions where the common-law doctrines as to employer's liability still obtain and in those corners of employer's liability in other jurisdictions where recent legislation has left the common law in force. It is notorious that a feeling that employers and great industrial enterprises should bear the cost of the human wear and tear incident to their operations dictates more verdicts in cases of employer's liability than the rules of law laid down in the charges of the courts. Most of the new trials directed by our highest courts of review because the verdicts returned are not sustained by the evidence are in cases of this sort. Here the law in the books is settled and defined. The law administered is very different, and only the charge of the court, rigidly examined on appeal, serves to preserve an appearance of life in the legal theory. More striking still is the divergence between legal theory and current practice in the handling of persons suspected of crime. The "third degree" has become an everyday feature of police investigation of crime. What is our law according to the books? "The prisoner," says Sir James Stephen, "is absolutely protected against. all judicial questioning before or at the trial." "This," he adds, "contributes greatly to the dignity and apparent humanity of a criminal trial. It effectually avoids the appearance of harshness, not to say cruelty, which often shocks an English spectator in a French court of justice."2 Such is the legal rule. But prosecuting attorneys and police officers and police detectives do not hesitate to conduct the most searching, rigid and often brutal examinations of accused. or suspected persons, with all the appearance of legality and of having the power of the state behind them. It is true, no rich man is ever subjected to this process to obtain proof of violation of anti-trust or rebate legislation and no powerful politician is thus dealt with in order to obtain proof of bribery and graft. The malefactor of means, the rogue who has an organization of rogues behind him to provide a lawyer and a writ of habeas corpus has the benefit of the law in the books. But the ordinary malefactor is bullied and even sometimes starved and tortured into confession by officers of the law. It is no doubt a sound instinct that makes us hesitate to give any such examinations the sanction of legality. We may agree with Sir James Stephen's informant that there is a deal of laziness behind it, that, to use his words, "it is far pleasanter to sit comfortably in the shade 1 "The Growth of Judicial Power," Political Science Quarterly, XXIV, 193, 194. rubbing red pepper into a poor devil's eyes than go about in the sun hunting up evidence." The fact remains, however, that the attempt of the books to compel prosecutors to use only a case-knife is failing. They will use the pickax in practice, and until the law has evolved some device by which they may use it in all cases the weak and friendless and lowly will be at a practical disadvantage, despite the legal theory. Not only does the law in the books seek to surround accused persons with safeguards which the practical exigencies of prosecution will not put up with, but at other times it demands conviction of persons whom local or even general opinion does not desire to punish. Jury lawlessness is the great corrective of law in its actual administration. The will of the state at large imposed on a reluctant community, the will of a majority imposed on a vigorous and determined minority, find the same obstacle in the local jury that formerly confronted kings and ministers. More than this, where in a particular cause there are peculiar considerations of mitigation or circumstances requiring exercise of a dispensing power, the power of juries to render general verdicts needs only a little help from alienist theories of insanity to enable a verdict to be rendered which will accord with the moral sense of the community. Here again, as in the case of the "third degree,' the law is often too mechanical at a point requiring great nicety of adjustment. And the tendency to extend the scope of jury lawlessness, manifest in almost all jurisdictions, indicates that there are many points where a readjustment or a better adjustment must be had. For instance, legislation making questions of negligence in all cases matters wholly for the jury is becoming common. Many states make juries judges of the law in criminal cases, and a larger number commit to juries the power of sentencing in many classes of prosecutions, or even in all cases. Persistent attempts are making to leave all cases of contempt to juries. More than all these, legislation against comment upon the facts in the charge of the Court, requiring a written charge, or in some states limiting the Court to granting or refusing written instructions tendered by counsel, has reduced the charge of the Court to an imposing, but ineffective, ritual and turned the actual decision of causes over to a jury unfettered by rules of law. What is the purpose and what the occasion of the extensions of the powers of juries to which I have referred? Practically the purpose is, in largest part, to keep the letter of the law the same in the books, while allowing the jury free rein to apply different rules or extra-legal considerations in the actual decision of causes to create new breaches and widen existing breaches between law in the books and law in action. The occasion is that popular thought and popular action are at variance with many of the doctrines and rules in the books, and that the law is trying to save the latter and accommodate 1 Ibid. |