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The Green Bag
physical pain, there grew up in Eng land rules against admitting in evidence confessions procured under highly con
ventional duress and against obliging prisoners to incriminate themselves, which rules in American law have crys
talized into numerous constitutional and statutory provisions, and these have been in turn so construed in some judi cial decisions as to extend the prohibi
tions far beyond the bounds of reason and public policy: we have seen convic tions set aside because juries were told of remarks of the prisoner made under
no obvious compulsion and which con tained no intelligible admission of guilt. One of the most enlightened‘ changes made by modern statutes in the rules of evidence permits the accused to testify in his own behalf; this privilege is in valuable to an innocent man, and it is
therefore simply impossible for a rational mind to avoid an unfavorable opinion as to the probable guilt of one who re
fuses to avail himself of it. Yet in the great majority of our states the statute law gravely requires this impossibility of a jury, and even obliges the Court to so instruct them, while forbidding the public prosecutor to tell them what everybody knows they must think any how. The reductio ad absurdum of the rule in question would seem to have been furnished, if it be really true that a statute making it the duty of an auto mobilist to give his name and the num ber of his machine to a person he runs over has been recently held unconsti tutional because it “obliges him to give
evidence against himself"! Nevertheless, in the main, we have
been saved from the fate of stationary communities, we have escaped the sterile
“rigidity" of Baron Alderson’s “fixed
rules and settled precedents" and all its baleful consequences through the legis
lative activity of our judges; why it has been needful to cloak this salutary activ ity under the shadow of legal fiction is again explained by Sir Henry Maine with his accustomed sagacity. He says as to this: It is not diflicult to understand why fictions in all their forms are particularly congenial to the infancy of society. They satisfy the desire for improvement, which is not quite wanting; at the same time they do not ofl'end the super stitious disrelish for change which is always present. Nothing is more distasteful to men, either as individuals or as masses,
than the
admission of their moral progress as a substan tive reality. This unwillingness shows itself often, as regards individuals, in the exaggerated respect which is ordinarily paid to the doubtful virtue of consistency. The movement of the collective opinion of a whole society is too palpable to be ignored, and is generally too visibly for the better to be decried; but there is
the greatest disinclination to accept it as a primary phenomenon. . . . There are, more over, and always have been, persons who refuse to see any fiction in the process, and conven tional language bears out their refusal.
This “conventional language" lan guage as to the propriety and necessity of a complete separation of legislative
from judicial powers and functions, may be found with us in many consti tutional provisions; but its effect on the
facts is the same as calling a dog's tail a fifth leg on the number of his organs of progression. There can be no doubt that the great body of English and American case law, built up by the steady
law making of English and American judges during six or seven centuries, in the main is the fruit of a constant effort on the part of these judges to make the law what they believed the law ought to be to advance the public welfare, and as little that, on the whole, they have
been inspired in this belief by the en lightened public opinion of their respec tive days and countries. Sir Henry Maine, in the passages to which I have called your attention, had
