The Green Bag
persistence of conventional fictions. The attitude of the courts should be that of not legislating, under any circumstances, without acknowledging the fact that they legislate, and making it clear that they legislate solely because they are compelled to legislate and because to dismiss a case for want of law would be
a breach of their judicial trust. If candor of this sort prevailed courts would not be suspected of legislating when they merely administer the law, and the criticism unjustly aimed at them would be directed into quarters where its fairness and force would work more swiftly the necessary remedy.
By Roy Temple House professor in the state university of oklahoma THE general estimate which a reader of Goethe might synthesize from his frequent allusions to the law, is by no means complimentary to that august profession. In one of the most frequently quoted passages from "Faust," spoken by Mephistopheles in the course of his advice to a student concerning the choice of a profession, the waggish Prince of Darkness replies thus to the student's confession : — I cannot reconcile myself Student to Jurisprudence. Mephistopheles. Nor can I therefore greatly blame you students I know what science this has come to be. All rights and laws are still transmitted Like an eternal sickness of the race, — From generation unto generation fitted, And shifted round from place to place. Reason becomes a sham. Beneficence a worry: Thou art a grandchild, therefore woe to thee! The right born with us, ours in verity, This to consider, there's, alas! no hurry. In the Netherlands drama "Egmont" we are told that, "The rascal always has the advantage. Ah prisoner he pulls the wool over the judge's eyes, as judge he takes delight in proving the innocent guilty. . . . When there is nothing to confess, an ingenious judge invents
something. Honesty makes a man care less, sometimes even defiant. So the judge begins asking harmless questions, the prisoner is proud of his innocence, as they call it, and speaks out flatly everything that a sensible man would conceal. Then the cross-examiner builds questions out of the answers and keeps his ears open till he finds a little contra diction, etc." In the less well-known play, "Die Aufgeregten" (The Excited Ones), occurs a very curious estimate of the relative merit of the learned professions: "I tell you, child, a surgeon is the most worthy of reverence of any man on the whole face of the earth. The theologian frees you from sins which he has in vented himself; the jurist wins your case and beggars your opponent, who has as good a right to win as you have; the physician cures you of one disease and brings on another, so that you can never be sure whether he has helped or injured you; but the surgeon frees you from a real evil, which you have brought on yourself, or which has come upon you accidentally and without your agency; he helps you without injuring any man. . . ."