406
THE GREEN BAG
cause demand, and contrive to find a verdict of master and servant tolerable in twentiethor render a judgment accordingly, wrenching century American jurisdictions. Another the law no more than is necessary. Many device which operates with great effect at courts today are suspected of ascertaining some periods of legal history is interposition what the equities of a controversy require, of a praetor or chancellor on equitable and then raking up adjudicated cases to grounds; the claim that a higher body of justify the result desired. Occasionally we rules exists, by virtue of which magisterial find a judge avowing frankly that he looks interference to prevent exercise of strict chiefly at the ethical situation inter paries legal rights may be justified, or a power of and does not allow the law to interfere acting pursuant to principles assumed to therewith beyond what is inevitable.1 This obligate the individual to a higher standard is essentially what the German equitable than that of the law and requiring him to use school contends for, and it is something of or abstain from using his legal rights or which complaint may be heard in this powers accordingly. But in process of time country today wherever a knot of lawyers equity crystallizes into a system everywhere is met with discussing recent decisions of and becomes but little less mechanical than the law itself. It has come with us to be a the courts. The necessarily mechanical operation of mere distinction of jurisdictions requiring legal rules is an inherent difficulty in the certain causes to be brought to one court or administration of justice. This mechanical be tried in one way while others go to a operation, the penalty we must pay for different court or are tried in a different certainty and uniformity and elimination of manner, for historical reasons. There still the personal equation in the administration remain discretion, interpretation and judicial of justice, is a perennial source of irritation. law-making, which are points of contact Many devices have arisen for mitigating it. between law and morals and admit of ethical considerations in application of the law. The first crude device was fiction — a pre tending that a cause fell within or without But discretion is now reduced to a strictly a rule contrary to obvious fact. Another defined and narrowly limited minimum, and crude and primitive device was an executive interpretation and judicial law-making settle dispensing power. That power is now the law for the next case and soon exhaust relegated to punitive justice, so far as legal the field. Moreover, interpretation-clauses theory goes; but we must admit that juries and the activities of the Commissioners on wield something very like it. The chief Uniform State Laws bid fair to limit the reliance of our legal system toward this end field yet more narrowly. With all of these is the power of juries to render general mitigating agencies arrested or rigidly tied verdicts, the power to find the facts so as to down, resort must be had to the power of compel a different result from that which the equitable application of legal rules. This strict law requires. This power, which as power is assumed by courts in America much Lord Coke expressed it, makes the jurors more widely than we suspect — or at least chancellors,2 is creating great dissatisfaction more widely than we like to acknowledge. with the jury in many quarters, and it is a But there is this characteristic difference. serious question whether it should not be In Germany it is admitted. A scientific held down to criminal law and possibly be theory is worked out to explain and justify hedged about even there. Yet this power it, and an open controversy rages as to its alone, probably, has made the common law propriety. With us the process is con cealed. Ostensibly there is no such power. 1 e.g. the frank statement of Mr. Justice Carter in i Ill. The process reveals itself under the name of Law Rev. 151. "implication " or in the guise of two lines of 1 Hixt v. Goats, i Rolle, 257.
