« AnteriorContinuar »
precedent will be followed in the next case. Questions sometimes arise which have not been decided by the court of highest authority over the trial court. Resort is then had to the decisions of courts of other states for guidance. It sometimes happens that the court of one state resolves the doubt one way and another the other. Sometimes the courts of different states are about equally divided in number on each side, and sometimes the less number appear to be the best authorities. With all this multiplicity of sources of the law is it strange that courts of first instance, which have to deal with both the facts and the law are sometimes reversed by the reviewing courts? If mere complexity of the laws is an index of civilization, the United States is a highly civilized country. The publication of reports of the decisions of the reviewing courts goes on at the rate of something like two hundred volumes a year, and the number steadily increases. That there are so many is of itself some proof that the law is in an unsettled state. The truth is that the modern tendency to refinement and nice distinction has so obscured many wholesome general principles that the rule itself can no longer be applied with any fair degree of certainty or uniformity and is therefore thrown aside and one or another exception followed. It is manifest that the present system will ultimately fall of its own weight. Much of the public dissatisfaction with the methods of the courts and the delays and expense of litigation is chargeable, to the impossibility of a full consideration of the law in the trial courts. The trial judge can make only a cursory examination of authorities bearing on a nicely balanced question, while the reviewing court proceeds with great deliberation, and feels called on to state and apply the law with the utmost accuracy. Notwithstanding the vast accumulation of recorded precedents, new inventions, new combinations and new forms of contracts are presenting new questions to the courts. Though broad general principles may apply, the habit of seeking for identical precedents has become so fixed that courts hesitate to apply broad principles without the support of precedents of like cases. This extreme nicety leads rather to confusion than to certainty. Ordinarily the general principles are better guides and more easily followed than the similar precedents. In theory there is and always has been a rule of law applicable to and decisive of every controversy, else cases might arise which could not be determined. The judge must find a rule, whether it has ever been announced or not. This is true in all countries and at all times.
If every disagreement were submitted to the courts under the existing elaborate system they would be overwhelmed with such a mass of litigation that it would be utterly impossible to dispose of it. As it is the judicial mills are so full in many places that long delays amounting to a substantial denial of justice are inevitable. Fortunately the people themselves adjust most of their differences without resort to the courts. Business is so conducted that but a very small part of the numberless transactions of commerce and employment give rise to any dispute. The parties to them frequently agree on terms and adjustments of their affairs quite different from what the law would impose. The moral law, views of justice and fairness often induce one to give more than the law requires or the other party asks, or to accept less than such amount. As moral standards advance and altruistic impulses increase necessity for the exercise of judicial functions diminishes.
While the courts could do much to overcome the difficulties above outlined by improvement of their own methods, comprehensive reforms can only be effected by the legislative power. Many branches of the law admit of world wide uniformity, while others are of necessity local. The law of the high seas, which no nation owns, must be common to the navigators of all nations. The rules of commerce are susceptible of substantial uniformity, and the law of personal relations, though so long and grossly unjust, ought to be uniformly just throughout the world. Slavery has already met the condemnation of all civilized people, and all other forms of oppressive personal relations must give way to moral progress. Titles to land and rights of occupancy of it must of necessity be dependent in some measure on local conditions of soil, climate, market and pressure of population. The purposes, forms and extent of industrial and commercial combinations will always depend in some degree on such conditions and also on the habits, capacity and character of the population. There are already beginnings of a common law of the world, the principles of which are recognized by all civilized nations. With an advancing recognition of moral standards it becomes apparent that the relations of nations however distant and dissimilar should be regulated by law, and also that the law should be just. World wide reforms having the effect of amendments of the law of nations are being made through the instrumentality of conferences at the Hague and elsewhere of representatives of the nations, by treaties between different powers, and yet more by the dissemination of the principles of morality. Legislative bodies in all parts of the earth now take some notice of the laws of distant nations and shape their own acts with some reference to the light they get from abroad. The most marked evil tendency resulting from the imitation of foreign examples is in the drift of the peaceful nations of the east toward the vicious militarism of the west, but it seems reasonably certain that this evil will correct itself in the near future, and that the universal law will be a steady approximation toward the moral law.
The evil of an unwieldy body of precedents, similar to that with which we are afflicted in the United States, existed in the Roman Empire in the time of Justinian, and was then met by a general codification. This remedy could be applied with comparative ease under an autocrat, but with legislative powers apportioned between Congress and forty-eight state legislatures the practical difficulties appear almost insurmountable. A start toward uniformity throughout the states has been made through the influence of the American Bar Association and the Commissioners on Uniform State Laws, but anything approximating a general codification of the whole body of the law throughout the Union is not yet even foreshadowed. Manifestly the widest practicable uniformity is eminently desirable. The obstacles to intercourse between residents of different parts of the country interposed by time and distance have been largely eliminated by modern inventions. The obstacles interposed by diverse laws can be eliminated by uniformity. The process by which this may be promoted is foreshadowed by the start already made by the Commissioners, taking one topic at a time and devoting ample time to it. More rapid progress might be made if the Commissioners had more general recognition throughout the states and sufficient financial support to enable them to devote the necessary time to the work. In a period of invention and rapid changes of social, industrial and commercial combinations, a rigid code, purporting to cover the whole field of the law for the future, is neither practicable nor desirable, but it is possible and eminently desirable to codify those branches that admit of complete uniformity, like commercial law, and that wherever moral principles are involved in the law on any subject the closest possible approximation to the just rule should be adopted and given the most ample application.
The states acting separately may make substantial progress in simplifying the laws of local application by codification by topic of these subjects. Of course all uniform state laws, however formulated, would only become effective on their adoption by the state legislature and would appear in the statute books merely as laws of the state. The value of a codification would be dependent in some measure on the degree of permanence attaching to the rules contained in it, but it has the advantage of classification and orderly arrangement, and tends to clearness in case of subsequent amendments. These are matters of great importance in simplifying the labors of the judge. When the rules of substantive law are scattered through numberless volumes under all sorts of classification and headings, he can never know that his investigation has quite covered the whole subject. With a complete codification of any topic he might feel a fair degree of assurance that he had all the law he required before him. After the best possible codification of existing law has been made there will still remain the experimental field of new subjects and radical changes of old ones, of new public enterprises and new private schemes requiring regulation.
All questions of fact and of law which are determined by the judges are resolved by the opinion of the majority of them, but in most states the determination of a question of fact by a jury of twelve requires the concurrence of all. This is most illogical and productive of great expense, inconvenience and delay in a considerable part of the difficult cases. In criminal cases subjecting a defendant to vindictive punishment it is merciful to require unanimity, but in civil cases the concurrence of three-fourths is ample, and it would be equally safe in criminal cases prosecuted with a view to the welfare of the defendant as well as the public.
In many states new trials of all the issues are granted for reasons affecting only one or more of them. Where this is done the first trial goes for nothing, when logically it should settle all issues as to which there has been a fair and full trial and clear finding.
Successive appeals ought not to be allowed in any case. The evil consequences of them far outweigh the general benefit.
Questions as to the constitutionality of statutes ought to be settled in advance of the private litigation under them, and in a proceeding in which the public is represented. It causes contempt of the legislative authority to require private citizens to determine for themselves when an act of Congress or a state legislature is valid, and, having acted in the belief that it is valid, to be called on to defend it through a series of courts and suffer loss at the end because the court of last resort holds it invalid.
EXECUTIVE FUNCTIONS In the evolution of government from chaotic liberty the first function to be developed is the executive. It is usually exercised in leading war parties, hunting or fishing expeditions, and in such manner as accords with the character, customs and purposes of the tribe. Combined with it are such crude beginnings of legislative and judicial functions as the situation requires, all assumed ordinarily by a single leader. The next function taking separate form is the legislative, usually exercised by a general council of the tribe or the elders or heads