Page:The Green Bag (1889–1914), Volume 25.pdf/458

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Judge Hook's Paper by saying a statute is against common right and must be strictly construed, or by reading it on the common law as though the common law were a permeat ing, ever-present restraint. It has fre quently been said that the Field Code of 1848 in New York was judicially put to death in those ways. There is sig nificance even in the very title of the subject of our discussion. The move ment for simplification of procedure is termed a struggle. That they blindly and irrationally worship at the shrine of precedent. Of course the law must be uniform, today as yesterday, and for John Doe as for Richard Roe, for that is of the very essence of justice. Otherwise the life, liberty and property of the citizen would not be safe. But the mental accumu lations of the past are not always sound or always authoritative; sometimes a precedent embalms an error instead of a principle. If the lowliest magistrate of first instance should deliver an un sound opinion on a new question in law and it should get into the reports it would likely act like a snag in a stream which slowly gathers increment and finally splits or turns awry the true and natural current. Frequently courts reach conclusions with expressed reluc tance and debit them to precedent; and lawyers regard a cause well-nigh won on finding a case or two to cite. On many clear-cut propositions there are two opposing columns of authority and sometimes height ranks with quality — occasionally they are found in the same court of last resort. Unhappy but unconscious turns of judicial phrase are followed into error, and careless state ments of settled principles produce an evil brood. That they deal in technicalities, and exalt the hidden meanings. Nice differ ences are discovered and subtle distinc


tions are drawn. Deviations from little rules of practice are urged and adopted and assume an unmerited importance. Simple statutory remedies intended as helpful and cumulative are construed as exclusive, and, the field of operation being ill-defined, new and dangerous perplexities are created. Though statutes may be framed rather roughly or coarsely for the practical affairs of life, they are taken into a cloister for metaphysical analysis. Ever since the earnest, truthseeking lawyer tempted Christ with questions the plain and simple things have been looked at doubtingly. Is not more meant than meets the eye? So it is that what are called "jokers" in legislation are so readily soUght for, found and established. Fairly obvious language is given shrewd and distorted twists. An instance of this is told: An indictment charged that the accused "did unlawfully obtain from J. D. his money," etc. It was most earnestly argued that the indictment was fatally defective because according to the words employed the money may have belonged to the accused himself. That was a case where ancient usage failed of observ ance. On February 3t 1660, Samuel Pepys, who was not a master of English, but whose rugged sentences are easily understood, noted in his diary the fol lowing: "In the meantime we sat study ing a Posy for a ring for her which she is to have at Roger Pepys his wedding." Many a judge upon the bench has lis tened to able, ingenious, subtle argu ments and yet heard through the open windows the roar of traffic in the street below, where were thousands to be affected and none to understand. And when opinions come down we hear it declared that comment on the results will be withheld until they are closely studied. Sometimes both sides win; one practically, the other theoretically.