The retrospective effect which a refusal to follow a former decision may have in disturbing vested rights being one of the most cogent reasons for adhering to precedent, there is less objection to departing from it when the decision can be so limited as to have only a future operation. This is occasionally feasible. Thus the High Court of Errors and Appeals of Mississippi by an early decision held that on the dissolution of a bank all its rights and liabilities were extinguished. Thirty years later the Supreme Court of the same State overruled that decision, declaring it "condemned by reason and the principles of modern and enlightened jurisprudence," but nevertheless applied it as a controlling precedent to a case arising out of the dissolution of a bank which had been incorporated previously to the time when the original decision was made.[Footnote: 1 Bank of Mississippi _v._ Duncan, 56 Mississippi Reports, 165.]

The effect of overruling a former opinion may also be limited by the dual character of our government.

The courts of the United States follow the decisions of the State courts in the determination of matters of State law. If a State law is held by the courts of the State to have a particular meaning and effect it will be accorded the same in the federal courts. But if a federal judgment is for that reason rendered in a certain form, and there is no appeal, it settles the rights of the parties to the suit forever, even should the State courts afterward reverse their former rulings as being erroneous.[Footnote: 2 Deposit Bank _v._ Frankfort, 191 United States Reports, 499.]

De Tocqueville, in his estimate of the American bar,[Footnote: 3 "Democracy in America," II, Chap. XVI.] speaks of it as devoted to investigating what has been done rather than what ought to be done; to the pursuit of precedent rather than of reason.

In a very limited sense this is true. Where codes are wanting, former judicial decisions must serve in their place. But it would be a mistake to suppose that it is a large part of the business of American lawyers to search out precedents for the guidance of the courts. Most cases, after any facts in dispute are once settled, depend on the application of the simplest processes of ordinary reasoning. No aid from the past is needed for this and none is to be had. It has been well said by an English judge[Footnote: 1 James, L. J., in 1875, Law Reports, 10 Chancery Appeal Cases, 526.] that the clearer a thing is the more difficult it is to find any express authority or any _dictum_ exactly to the point. Nor, if there be one, is it to be accepted without regard to the circ.u.mstances out of which it arose or the end to be effected by the judgment. A precedent may indeed be used slavishly, but so it may be used in the free spirit in which it was conceived. Many an argument at the bar, however, is ruined by an excessive anxiety to repeat the _ipsissima verba_ of some ancient opinion, when the soul of it is the only thing of value. And occasionally courts are chargeable with pursuing the letter of some of their former deliverances rather than the spirit which called them forth and gave them all their vitality.

CHAPTER V

THE JUDICIAL POWER OF DEVELOPING UNWRITTEN LAW

The English common law was and is an unwritten law. To find it one has to look in legal treatises and reports of judicial decisions. Its historical development has been not unlike that of Rome. In Rome, as in England, there were in early times written enactments or governmental declarations of standing rules on but few points. Some of these writings were of special importance, such as the twelve tables of Rome and the _Magna Charta_ of England. These were regarded as so bound up with the very life of the people as to have a place by themselves, and a superior force to anything to the contrary to which the free consent of the people was not formally given. But in general Romans and Englishmen preferred to make custom their law, and to let this law grow "not with observation," but insensibly from day to day as the needs of their social organization might be found to require. It was a wise preference, and founded on a better philosophy than they knew--than the world knew, until the theory of evolution was demonstrated by Darwin and applied to governmental science by Spencer.

A customary law for a people of advancing civilization and power must expand with corresponding rapidity. There will soon be disputes as to what it is on certain points and a demand for some authoritative information as to this. In Rome, the priests gave it at first, and then the lawyers. In England, the priests never gave it, as priests. There was no sacred college of law.

Priests took part in legislation. A priest, at the king's right hand, was his spokesman in doing equity. But it was from the first the king as a judge, or the king's judges deputed by him and sitting for him, who settled controverted questions of common law. For the Roman and for the Englishman the first representatives of government who could be called judges were primarily and princ.i.p.ally executive officers. The Roman _praetor_ was not given judicial functions because he had legal attainments. The _aula regis_ of early England was composed of the great officers of state. The chief justiciar, however, soon ceased to be prime minister. His a.s.sociates on the bench, as law became a recognized profession, came to be chosen largely for their fitness for judicial work and to be kept at it during the king's pleasure. At Rome, on the contrary, the praetorship remained a political place, held for a fixed term, and a brief one. Information as to the unwritten law applicable to any controversy between parties had therefore to be sought from others. The lawyers could give it; and it was to them, not to the judges, that resort was had. The opinion of a great jurist was for Rome what the opinion of a judge was for England. It was commonly accepted as conclusive not only by the people but by the courts.

Such opinions profess to state what the law was by which rights accrued out of a past transaction. In fact, they often do much more. By declaring that to be the law, and declaring it with authority, they are the first to make it certain that it is the law. The difference between this and making law is not great.

The Romans at first accorded authority to the opinions (_responsa_) of lawyers only because of the standing and reputation of those who gave them. Later the emperors gave an official character and weight to the opinions of certain lawyers of the past. The English always accorded authority to the opinions of their judges, because they spoke for the state.

Americans from the first have done the same.

American judges have exercised these powers of ascertaining and developing unwritten law even more freely than English judges.

They were forced to it as a result of applying the common law of one people to another people inhabiting another part of the world and living under very different social conditions. In doing this it was necessary to reject not a little of what for England had already been definitely settled and universally accepted. The legislatures of the colonies and States rejected much, but the courts rejected more. The legislatures also added much, but the courts added yet more.

Usages grow up rapidly in new settlements and along frontiers bounded by territory held by savages. Of such usages, under the rulings of the courts, many were soon crystallized into law.

New inventions and new political conceptions in the eighteenth century began to change the face of the civilized world. The common law as to agency had to be adapted to the operations of business corporations; that as to highways to railroads; that as to contracts by mail to contracts by telegram, and later to contracts by telephone. The whole law of master and servant, which for the English people was bottomed on the relation of land-owner and serf, was to be recast. Public a.s.semblies were to be regulated and their proceedings published with greater regard to public and less to private interest.[Footnote: Barrows _v._ Bell, 7 Gray's Reports, 301; 66 American Decisions, 479.] Along all these lines and many others the American courts have now for nearly three hundred years been quarrying out American law from the mine of the unwritten law of the people within their jurisdiction. It has been their natural endeavor to make each part of the new system of jurisprudence which they were gradually building up harmonious with every other and to give a certain symmetry to the whole. This has forced them to deduce rule from rule and principle from principle with a freedom for which in older countries of settled inst.i.tutions there is less occasion. The process has gone on during the last fifty years with ever-increasing rapidity, and for two reasons. There have been more novel questions to meet and there has been a greater wealth of suggestion and precedent at command.

Not a little, however, of the development of our unwritten law has been and remains of a local character. This is particularly true of that of the Pacific States, both on account of climatic conditions and historical antecedents.[Footnote: Katz _v._ Walkinshaw, 141 California Reports, 116.] Chief Justice Field of the Supreme Court of California, afterward so long a member of the Supreme Court of the United States, did both a constructive and a destructive work in shaping the jurisprudence of that State. He found it seated in a land on which certain inst.i.tutions of civil law origin had been impressed for centuries and into which other inst.i.tutions of common law origin had been introduced in recent years. His judicial opinions molded these into one ma.s.s, rejecting something from each and retaining something from each.[Footnote: Pomeroy, "Some Account of the Work of Stephen J. Field," 38, 45.] Some of the results of his creative touch have been the foundation of decisions in distant States, but most were so dependent on local circ.u.mstances and conditions as to be incapable of transplantation.

But as to all questions of general concern which can be answered from a.n.a.logies drawn from the common law, the judges of each State--and it is the State judiciary on which the burden of developing unwritten law mainly rests--now find in the reported decisions of the courts of last resort in all the other States a fertile source of supply when they are looking for a rule to fit a case for which the ancient law made no direct provision. Keen intellects from the bench, aided perhaps by keener ones from the bar in forty-five different jurisdictions, are discussing the problems of the day as they appear mirrored in litigated causes.

What is a new question in one State was set at rest ten years or ten days ago by a judicial decision in another. If the decision was a just and logical deduction from accepted principles of the older law it will probably be followed everywhere. If unjust and illogical, its very faults will serve to guard other courts to better conclusions.

How far judges advance along these paths depends greatly on the character of the bar. A judge rarely initiates anything. He is apt to fall into a mistake if he does. The business which he has to do is brought before him by others. It is brought before him in the best way to throw all possible light upon it, because it is set before him from two opposite points of view by two antagonists, each strenuously endeavoring to detect a flaw in the reasoning of the other. These two men have previously given the subject in controversy much careful thought. What views neither presents are generally not worth presenting. As was said in the preceding chapter, it is only in the plainest case that a judge can properly or safely base his decision on a position not suggested at the bar or as to the soundness of which he has not asked the opinion of the counsel at the hearing.

The development of law, therefore, whether unwritten or written, is primarily the work of the lawyer. It is the adoption by the judge of what is proposed at the bar.[Footnote: See Chap. VI, X.]

There are obvious limits to this power of developing unwritten law. The courts are not to push forward into a place more appropriate for the legislature to occupy.

Mr. Justice Holmes of the Supreme Court of the United States, when Chief Justice of Ma.s.sachusetts, stated with his usual elegance and force the bounds within which, as it seemed to him, judicial authority should be kept. In a common law suit against a railroad company for damages suffered by an accident on its road, the defendant had asked the trial court to order the plaintiff to submit to an examination of his person by a physician whom it named, for the purpose of determining what injuries he had really suffered. "We agree," said the Chief Justice, "that in view of the great increase of actions for personal injuries it may be desirable that the courts should have the power in dispute. We appreciate the ease with which, if we were careless or ignorant of precedent, we might deem it enlightened to a.s.sume that power. We do not forget the continuous process of developing the law that goes on through the courts in the form of deduction or deny that in a clear case it might be possible even to break away from a line of decisions in favor of some rule generally admitted to be based upon a deeper insight into the present wants of society. But the improvements made by the courts are made, almost invariably, by very slow degrees and by very short steps. Their general duty is not to change, but to work out, the principles already sanctioned by the practice of the past. No one supposes that a judge is at liberty to decide with sole reference even to his strongest convictions of policy and right. His duty in general is to develop the principles which he finds with such consistency as he may be able to attain.... In the present case we perceive no such pressing need of our antic.i.p.ating the legislature as to justify our departure from what we cannot doubt is the settled tradition of the common law to a point beyond that which we believe to have been reached by equity, and beyond any to which our statutes dealing with kindred subjects ever have seen fit to go. It will be seen that we put our decision, not upon the impolicy of admitting such a power, but on the ground that it would be too great a step of judicial legislation to be justified by the necessities of the case."[Footnote: Stack _v._ New York, New Haven and Hartford Railroad Co., 177 Ma.s.sachusetts Reports, 155; 58 Northeastern Reporter, 686.]

The theory of judicial power thus stated carries implications that would not be universally accepted. It is intimated that if the necessity had seemed strong enough to call for the order asked for in the trial court it ought to have been granted, although not justified by any settled rule or authoritative precedent, nor by any clear a.n.a.logy from such a rule or precedent. This is a view taken, though with less caution and qualification, in a work written by the same hand many years before, which is recognized as a legal cla.s.sic on both sides of the Atlantic. In "The Common Law,"[Footnote: Pp. 35, 36.] after discussing some of the reasons which actuate judges in a.s.suming to unfold the unwritten law, it is stated thus:

The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy: most generally, to be sure, under our practice and traditions the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last a.n.a.lysis.... The truth is that the law is always approaching and never reaching consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow.

Courts enter on a dangerous ground when, to justify their action, they rely on any rule of public policy not stated in Const.i.tution or statute and unknown to the common law. If such was once the habit of the English courts, it was because of social conditions with which they had to deal which no longer exist either in their country or in ours. It is for the judge to adapt old principles rather than adopt new ones. What one man thinks is public policy another, equally clear-headed and well-informed, may not. The safe course for the judiciary is to rely on the legislature to declare it, so far as the common law does not. If, however, the courts of a State are called upon for the first time to declare what any rule of the common law, governing a past transaction, is, or at a given time was, in that State, and this be a doubtful question, the decision virtually calls for the making of a new rule, though under the form of applying an old one, and that will be adopted which may be deemed best calculated to do justice in cases of that particular character.[Footnote: Seery _v._ Waterbury, 82 Conn., 567, 571; 74 Atlantic Reporter, 908.]

CHAPTER VI

THE JUDICIAL POWER OF INTERPRETING AND DEVELOPING WRITTEN LAW

As governments must provide some authority to declare what the unwritten law governing any transaction was, so they must provide some authority to declare what the written law governing any transaction means. Few statements of any rule or principle can be written out in such a way as to convey exactly the same impression to every mind. Thought is subtler than its expression. The meaning of written laws will therefore often be questioned.

An answer is sometimes attempted by the authority from which the law proceeded. A king declares what he intended by the terms of an ambiguous edict. A legislature pa.s.ses an act to declare the meaning of a previous one. But meanwhile rights have accrued.

Something has been done in reliance upon a certain construction of the law. If it was a right construction, then what was done was lawful, and no subsequent explanation of his intentions by the lawgiver can change this fact. Laws are addressed to the community at large, and their meaning must be determined once for all from the language used, however inadequate it may have been to express the real design of those who enacted them, unless that design so clearly appears, notwithstanding an unfortunate choice of words, as to compel an interpretation against the letter but in obedience to the spirit of the enactment. A "declaratory statute"--one declaring what a previous statute meant--is therefore, if it gives it a meaning unwarranted by its terms when so interpreted, only effectual as respects future transactions.

As to the past, the meaning is for the courts, and while such a statute may aid, it cannot control them.

Are the courts to send such questions to a jury or shall the judges decide them? The answer must be determined by considerations applicable to every sort of written paper. If the true construction of an ambiguous doc.u.ment be left to juries, it is evident that there would be no certainty that different results would not be reached in different cases, and probable that unanimity would seldom be attainable. If left to judges, a decision will certainly be reached and, it may be presumed, be reasoned out with care, while if the matter be one of public importance the grounds on which they proceed will be so expressed as to furnish a guide to others toward the same conclusion. The construction of all writings is therefore, by the Anglo-American common law, as by the judicial system of most countries, deemed, in case of a question affecting litigated rights, to belong of right to the judges. Their possession of this power in the United States is especially necessary in respect to written law.

In every government there must be some human voice speaking with supreme authority. It may be that of one man or of many men.

The essential thing is that it should be a personal utterance, proceeding from persons to whom, by acknowledged law or custom, submission is due, and one that, if need be, can be enforced by the whole power of the State.

The fundamental principle of American government, as laid down in the words of Harrington in the oldest of our State Const.i.tutions, after which many of the rest, and that of the United States as well, have been largely patterned, is that it is one of "laws and not of men."[Footnote: Const.i.tution of Ma.s.sachusetts, Part the First, Art. x.x.x, quoted more fully in Chapter II.] Laws, however, must be administered by men. Their meaning, if it be uncertain, must be determined by men. It must be the subject, as the same Const.i.tution twice affirms, of "impartial interpretation."[Footnote: _Id_., Preamble, and Part the First, Art. XXIX.] This interpretation is really what gives them force. It is the personal utterance of one speaking for the State, and who speaks the last word. It was simply following English precedent to give this power to the courts as respects legislative enactments. But the principle which required it inevitably extended with equal force to const.i.tutional provisions. The people who adopt written const.i.tutions for their government put their work in a form which must often give rise to questions as to what they intended to express. They rely on the judiciary to secure their enforcement, and the judiciary must enforce them according to what it understands their meaning to be.

There is but a step from interpretation to enlargement. Every statute is pa.s.sed to accomplish something. If the object is clear, the rules of Anglo-American law allow the court that may be called on to apply it to extend its operation to cases within the purpose evidently intended, although the language used is inadequate fully to express it. This is styled giving effect to "the equity of the statute." Even violence can be done to the words, if so only can this judge-discovered intent be made effectual. The rules governing judicial interpretation of statute law fill a good-sized volume.

As the Roman lawyers worked out by force of logic and a.n.a.logy an extensive system of private law from the meagre fabric of the Twelve Tables, so under the lead of American lawyers American judges have applied the processes familiar in the development of unwritten law to the development of our written law, both statutory and const.i.tutional.

Carlyle said that the Roman republic was allowed so long a day because on emergencies the const.i.tution was suspended by a dictatorship. The American republics have a right, upon this theory, to a still longer one. With them the Const.i.tution need not be temporarily set aside on an emergency. It may simply be permanently enlarged or limited by judicial construction. A Const.i.tution is the garment which a nation wears. Whether written or unwritten, it must grow with its growth. As Mr. Bryce has put it: "Human affairs being what they are, there must be a loophole for expansion or extension in some part of every scheme of government; and if the Const.i.tution is Rigid, Flexibility must be supplied from the minds of the Judges."[Footnote: "Studies in History and Jurisprudence," 197.]

The Const.i.tution of the United States declares that no State shall pa.s.s any law impairing the obligation of contracts. This proposition being the major premise, Chief Justice Marshall added the minor premise that every charter of a private corporation is a contract, and completed the syllogism by the conclusion that no State can pa.s.s any law impairing the obligation of such charters.

The counsel who opposed this doctrine urged that every one must acknowledge that neither the men who framed the Const.i.tution nor the people who adopted it ever thought that the word "contracts,"

as so used, embraced "charters." Be it so, was Marshall's answer, that proves nothing unless you can go farther and satisfy the court that if they had contemplated the construction we put upon it they would have used words to exclude it.[Footnote: Dartmouth College _v._ Woodward, 4 Wheaton's Reports, 518.]

The acquisition of foreign territory is a matter not especially provided for in the Const.i.tution of the United States. Jefferson hesitated to make the Louisiana purchase on this account, and was quite inclined to think, when he did make it, that he had transcended the bounds of his authority. The courts gave the Const.i.tution a different interpretation, and stamped this upon it as permanently as if it had been a birthmark. It was done by Marshall in a single sentence. "The Const.i.tution," he observed, "confers absolutely on the government of the Union the powers of making war and of making treaties: consequently that government possesses the power of acquiring territory either by conquest or by treaty."[Footnote: American Insurance Co. _v._ Canter, 1 Peters' Reports, 511, 542.]

In the course of the same opinion, the great Chief Justice led the way toward the doctrine, to be developed later, that the manner in which such territory was to be held and its inhabitants governed need not be such as the Const.i.tution prescribed for the territory within one of the United States. It was to be prescribed by Congress under its power "to make all needful rules and regulations respecting the territory or other property belonging to the United States." Congress had set up a Legislative Council in the Territory of Florida, and the Legislative Council had established a court of admiralty, with judges holding office for four years. The case in hand turned upon the effect of a judgment of that court. It was contended at the bar that it had no effect, because by the express terms of the Const.i.tution the judicial power of the United States extended to all cases of admiralty jurisdiction, and must be vested in one Supreme Court and such inferior courts as Congress might ordain.

"We have only," was Marshall's reply, "to pursue this subject one step further to perceive that this provision of the Const.i.tution does not apply to it. The next sentence declares that 'the judges both of the Supreme and inferior courts shall hold their offices during good behaviour.' The Judges of the Superior Courts of Florida hold their offices for four years. These Courts, then, are not const.i.tutional Courts in which the judicial power conferred by the Const.i.tution on the general government can be deposited. They are incapable of receiving it. They are legislative Courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States. The jurisdiction with which they are invested is not a part of that judicial power which is defined in the third article of the Const.i.tution, but is conferred by Congress in the execution of those general powers which that body possesses over the territories of the United States. Although admiralty jurisdiction can be exercised in the States in those Courts only which are established in pursuance of the third article of the Const.i.tution, the same limitation does not extend to the territories. In legislating for them, Congress exercises the combined powers of the general and of a State government."[Footnote: 'American Insurance Co. _v._ Canter, 1 Peters' Reports, 511, 546.]

It will be perceived that the argument here was that the Florida court did not exercise any of the judicial power of the United States because it could not, and that it could not because the judges were not commissioned for life. This left unanswered the deeper question whether any act of Congress could serve to support a court existing under authority of the United States, the judges of which were to hold office only for a term of years.

It was a.s.sumed that the provision for a life tenure did not apply to the Florida judges, because if it did the court would be illegally const.i.tuted. Whether it was legally or illegally const.i.tuted was not discussed, except for the general reference to the power of Congress to legislate for the territories and exercise the rights of sovereignty over territory newly acquired by contest or treaty.

On this decision has been built up our present system of governing territorial dependencies at the will of Congress.[Footnote: Mormon Church _v._ United States, 136 United States Reports, 1, 43; Dorr _vs._ United States, 195 United States Reports, 138, 141.]

Marshall's was the last appointment made to the Supreme bench from the Federalist party. It was not many years before that party disappeared from the face of the earth. Jefferson put three men there representing the other school of political doctrine,[Footnote: Among Jefferson's papers is a description of five men whom he especially considered with reference to filling the first vacancy which occurred during his administration.