Charles McCarthy

“ Meanwhile, if, by the establishment of a real study of jurisprudence in our law schools, expert help and the collection of scientific data for our legislators, we can help our law-makers to put the will of the people into a noble, clear, dignified form, we can aid greatly to a solution of this problem. If the people show that they desire a certain piece of legislation, the legislature, whatever may be the accumulation of decisions to be surmounted, should not hesitate to pass it in a form economically and technically correct and submit it to our courts—and let them destroy it at their peril! ”

“ Let us suppose that the supreme court of the United States was deprived for one instant of all cases, precedents and the body of jurisprudence which has accumulated, what would result? Would not the efficiency of our judiciary be greatly diminished? Yet the striking thing is that the man who makes the law, who fits it to economic conditions, has no such body of guiding principles to help him. His task is tenfold-more difficult than that of the judge.
This will seem strange to the lawyer, who will immediately say that he has the decisions of the courts. So he has, but they do him little good. ”

“ How can we hope for anything else than a turning to commissions for help, right and justice with such a growing impatience of the justice administered by these tradesmen? The law schools, lacking as they do real appreciation of history and sympathy with democracy, have become, in many instances, seats of Bourbonism. If we are to believe with these men that the only law is the judge-made law, everything is in a static condition and the efforts of the legislature to change conditions are foolish and needless. ”

“ The ridiculous assumption of fatherhood and protectorship which some American judges, in their pomposity, have attained, makes itself felt not only in the courts but in the attitude of practically every lawyer who comes to the legislative halls. It has been the means of retarding the march of progress in legislation and of establishing into the body of our government certain fallacies which have been a real and potential danger to the whole fabric of the state. ”

“ It is the spurious decisions—the dead weights of precedent—which are in the way, not the constitution itself.
But the system is here; its menace is always present and legislation or the science of legislation cannot go forward until something is done to remedy these conditions. Something must be done for the safety of our courts because sooner or later the people will say, "If you legislate as well as interpret—if you are a legislative body, we cannot allow you to exist unless we have control over you." ”

“ It is the merest commonplace that some restraint of liberty of contract and business, some discrimination, is not merely valid, but essential to the interests of society. Can the fundamental law be satisfied with the proclamation of rights of absolutely indeterminate content, directly contrary to other recognized principles, or is not limitation and definition of some sort absolutely essential to an intelligible rule of law? The courts have given us criticism, denunciation, and condemnation, but no positive guidance. ”

“ The supreme court itself has more limitations, in that it must at least have a case presented before it can hold hearings or render a decision. The attorney-general alone has the remarkable power of despatching a law put upon the statute books by the will of the people or so modifying it that it is rendered useless and practically void. ”

“ The reasons which in some sense justified the former attitude of the courts have therefore disappeared, save perhaps in capital cases, and the question is, Shall we adhere to the principle based upon conditions no longer existing? No sound reason occurs to us why a person accused of a lesser crime or misdemeanor, who comes into court with his attorney, fully advised of all his rights and furnished with every means of making his defense, should not be held to waive a right or privilege for which he does not ask, just as a party to a civil action waives such a right by not asking for it. ”

“ What is needed is a body of jurisprudence or quasi-jurisprudence—the formation of a body of principles directly relating to the whole subject of statute law. The judge goes into the law library and finds the classified law and jurisprudence of the past; the legislator comes for a few months every year to make laws with no such data at his command.
There is no man for whom the study of comparative legislation will be of more benefit than the business man. Whether we wish it or not, we are taking up the things with which Europe has been working. ”

“ The law can renew its youth only by breaking with its own past. A concrete legal right or principle of law, which, simply because it has come into existence, claims an unlimited and therefore eternal existence, is a child lifting its arm against its own mother ”

“ We do not consider the Industrial Commission a court, nor do we construe the act as vesting in the Commission judicial powers within the meaning of the Constitution. It is an administrative body or arm of the government which in the course of its administration of a law is empowered to ascertain some questions of fact and apply the existing law thereto, and in so doing acts quasi-judicially, but it is not thereby vested with judicial power in the constitutional sense. ”

“ A case of conflict of the idea of law with itself which, for the individuals who have staked all their strength and their very being for their convictions and finally succumb to the supreme decree of history, has in it something that is really tragic. ”

“ By instituting commissions we have established code law as understood in the old countries and at the same time have laid the foundations for what Roscoe Pound of the Harvard law school calls "Sociological jurisprudence." Are not the rulings, based as they are upon the police power, evidence enough of the fact that the old procedure of our courts, the old doctrine of precedent, is giving way to the newer doctrine of paramount necessity?
The judges are not entirely in fault: a portion of the blame lies elsewhere. Old forms give way but slowly to new growths. ”

“ Perhaps the courts are not all wise; perhaps the fathers who made the constitution were wiser than they may seem to the learned product of our so-called law schools. It may be that with a few scientific tools in the hands of our legislators, we may find a way out of the difficulty. It may be that we can build up a code of law which may be taught in real law schools, so that they will produce men who will go to the bench believing in some other maxim than "What is, is." ”

“ Ten, yes, even twenty years after a law has been enacted, after property rights have grown under it, suddenly there may be a decision declaring that law unconstitutional. Could anything be more conducive to chaos? What has been said above applies with double force to the federal courts. There is no way of changing the constitution except by that supreme legislative body, the supreme court of the United States. ”

“ The thorough study of the economic conditions made by our legislators before those statutes were enacted, and the patience with which hearings have been held and testimony taken, have had their reward in the harmony between the courts and the legislature so long observable in the state. It is good for the legislature, and for the courts as well, to have the care and the help which comes from some machinery at the hand of the legislator to help him to carry out the will of his constituents. ”

“ That governments founded on written constitutions which are made difficult of amendment or change lose much in flexibility and adaptability to changed conditions there can be no doubt. Indeed, that may be said to be one purpose of the written constitution. Doubtless they gain enough in stability and freedom from mere whimsical and sudden changes to more than make up for the loss in flexibility, but the loss still remains, whether for good or ill. A constitution is a very human document, and must embody with greater or less fidelity the spirit of the time of its adoption. ”

“ The legislation throughout the world, the model laws, the cases which interpret them, the opinions of administrative officers, the investigation of economists and the statistics of the actual working of laws—a collection of this data is absolutely necessary and especially so to-day, when economic conditions are so constantly shifting and changing.
Of course the above diagram does not tell the whole story. A law is made not by the courts or by the legislature or still less by administrative bodies. It is made by all of these forces. ”

“ Does any one doubt but that the people of New York would sustain that law overwhelmingly? If so, what better test have we of its constitutionality? It might be advantageous to have some provision so that in case the decisions of a judge were overturned several times by popular vote, the judge would be subject to recall as being unable to interpret the constitution. The writer is a firm believer in representative government and is of the opinion that the legislature will never reach its highest dignity and responsibility until some device is used to hold the court within its proper sphere. ”

“ Thanks to the humane policy of the modern criminal law we have changed all these conditions. The man now charged with crime is furnished the most complete opportunity for making his defence. He may testify in his own behalf; if he be poor, he may have counsel furnished him by the state, and may have his witnesses summoned and paid for by the state; not infrequently he is thus furnished counsel more able than the attorney for the state. ”

“ The chief legislative problem before us in many states—the problem which has required all our best energy in the past—is the creation of fictions which will in some way allow the acts demanded by the people and acknowledged to be necessary, to exist on our statute books, in spite of the limits of the federal and state constitutions as interpreted by thousands of decisions. ”

“ The establishment of a legislative reference bureau as part of the work of Harvard and the establishment of numerous municipal reference departments in various universities modelled to some extent after the Wisconsin bureau, are also encouraging.
But we are in the midst of great struggles in America; the power of the courts in these contests must be well defined. Good men die and public opinion cannot often bear evenly and justly upon judicial bodies. The struggle for new forms and to meet new conditions is Titanic—witness the Standard oil and the tobacco cases. ”

“ All this material ought to be collated and digested in the same manner as is now done with judicial decisions, and the result should be the construction of a body of principles of legislation to supplement the existing body of principles of law. Both in its material and in its method this branch of legal science must differ considerably from the judicial jurisprudence with which we are most familiar; but it is a department of our science equally legitimate and valuable, and destined to grow in importance with the increasing legislative activity of the modern state... ”

“ This mass of comparative data cannot be properly built up unless our law schools, our political science and economic departments, coöperate so that we may study the principles of statute law, of legislative procedure, and the whole machinery of law-making. Our schools must go even further than this; they must study scientifically the whole question of administration. ”

“ Let the legislator try to make a law regulating rebates and he will find at once that the ‘kinds of economic rebates may be many times greater than will fit any definition of the courts. It is necessary to have this economic data as well as the legal and we must find out how these laws work so as to profit by the experience of others. This is no small task. It is a far greater problem than that of building up a law library or gathering jurisprudence of the past. ”

“ It should not be thought because of apparent failures of justice in a case now and then, and apparently unnecessary delay and expense in disposing of criminal cases in some of the large cities, that the administration of the law in Wisconsin can be judged thereby. In this state, persons accused of crime are, as a rule, promptly tried, and, doubtless, are convicted when they ought not to be, quite as often as they are acquitted when they ought not to be. ”

“ The answer must be yes, as the manifest purpose is to promote every element of the central thought of the Constitution. Anything fairly within that has always been and must, necessarily always, be held legitimate. Keeping in mind that in the selection of means the Legislature has a very broad comprehensive field in which to freely make a choice, the next question is, Are the means contemplated reasonably appropriate to the end to be attained? Not are they the best means, but are they proper means, in that they are not within any express prohibition and tend to conserve rather than to destroy? ”

“ It will be framed to meet the problems and difficulties which face the men who make it and it will generally crystallize with more or less fidelity the political, social and economic propositions which are considered irrefutable, if not actually inspired, by the philosophers and legislators of the time; but the difficulty is that, while the constitution is fixed or very hard to change, the conditions and problems surrounding the people, as well as their ideals, are constantly changing. ”