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tive judges have generally been composed of men of unquestioned integrity and legal learning; and judges who have served a long time are often renominated by both parties and thus reëlected practically without a contest. Finally, the advocates of popular election point out that in so far as judges have the power to declare laws void their functions are political and, therefore, they should not be removed from popular control.
To offset these arguments, those who favor appointive judges say that where good judges have been obtained, they have been secured in spite of popular election, not because of it. Massachusetts, whose judges have always been distinguished for their high character and legal learning, is always cited as the state in which the appointive system has proved eminently successful. It is contended that the people do not have the capacity to pass upon qualifications required for a successful judge and often select the most popular man rather than the one most fit. Making the judge an elective officer, the advocates of the appointive system continue, renders him dependent on political leaders; party service - not fitness is made a test for the office; in order that the republican form of government may be a success and justice done between man and man, the judiciary must be absolutely independent; the judge must feel that he need not come up for a renomination before the leaders of his party; he must not be afraid to render an unpopular decision which may perhaps cause his defeat if he is candidate for reëlection. Therefore, they conclude, the appointive system is the only one which puts the judges in such a position.'
The salaries of judges are usually rather low in comparison with the compensation afforded to judicial officers in Europe, or with the income of the first-class practising lawyer. For example, the judges of the supreme court in Vermont receive only $2500 a year. There has been, however, a tendency in recent years to increase the salaries of judges, and in some states they are well paid. New York now pays the chief justice of the court of appeals $14,200 a year and the associate judges $13,700 each, while supreme court justices in certain districts receive $17,500 a year.
'On this whole question of choice of judges, see Readings, p. 488.
The Sources of Law
I. The first great source of our system of jurisprudence is the English common law. Its characteristic feature consists in the fact that its rules are to be found, not in some code enacted at one time by the legislature, as is generally the case on the continent of Europe, but in decisions of the courts spread over several centuries. The law is thus built up and developed by judicial precedents. To find what principle governs on some question of private law, a lawyer practising in a jurisdiction where the common law prevails must find what has been previously decided by the courts on that point and be guided by those decisions.
The common law began its development in mediæval England. When a case came before the royal justices, they tried to discover the prevailing custom on the subject and decide the question in accordance with it. Theoretically, they did not make the law, but merely formulated the customs of the community into legal rules and gave them an official sanction. As a matter of fact they did make law, for they interpreted the customs and had the power of selecting some and discarding others. When another case involving the same point was brought before the judges, they naturally followed the rule laid down in the decision of the first case. If, however, it was thought that the rule of the first case was incorrect or that conditions had changed, they would overrule the previous decision and work out a new doctrine. This flexibility is one of the best features of the common law. In this way a body of precedents was built up and a set of legal principles developed. When an entirely novel case came up, some "general principle" of the common law was invoked for its decision.
As the common law developed, it gradually became more and more crystallized and less flexible. The judges tended to be technical, and any litigant whose case did not fall within certain well-defined classes was liable not to be granted the relief really due him. In numerous instances in which obvious injustice was done there was no remedy at law.
These deficiencies of the common law necessitated the development of a new body of jurisprudence along with it. This new
1 Louisiana, whose law is derived from the continental system, is an exception. There are some southwestern states which are not regarded as common law states. See Political Science Quarterly, March, 1887.
system began to be known as equity. It was customary for a person who felt that he had been wronged and could obtain no remedy at law, to petition the king, and at a later period the king's chancellor, for relief. The granting of this relief was at first considered an executive act and purely a matter of grace, but gradually the chancery evolved into a regular court with its own body of equity principles, which were much more flexible and far less technical than the ordinary law. Equity, therefore, gave relief in cases where none could be had at law; and in many instances where the legal remedy was inadequate it accorded the relief that was really demanded by the plain justice of the situation.
For example, the only redress granted at law is money damages, but equity goes much farther and will command a person to do something which is for the benefit of the plaintiff. Thus, in some kinds of contracts, a court of equity will compel the party in default to perform his part of the agreement. Again, equity will command a person, by an order called an "injunction," to refrain from doing something which is injurious and unjust to the plaintiff.
The English systems of law and equity were transplanted to America. When the colonies cast off their allegiance to Great Britain, some of the state constitutions specifically provided that the common law should continue in force; but without such a provision, the common law continued to be applied in the American courts and is to-day applied in so far as it has not been modified by legislation. Very few commonwealths, however, have retained the system of separate chancery courts. Generally the same court administers both law and equity, sitting with a jury for the trial of cases at law and without one for the disposition of equity causes; and the term "common law" has come to include both law in its technical sense and equity.
Although the common law as administered in the various states constitutes a single system of jurisprudence, yet it has undergone modification in the different jurisdictions. Thus, for instance, on many points the "common law" of Massachusetts and New York will be found to differ. In each state the interpretation which is binding is made by its court of last resort; and as different courts will hold varying views on what is or ought to be the
1 New Jersey, Tennessee, Alabama, Delaware, and Mississippi.
law on a particular topic, the rules applied in different commonwealths will vary. But the courts of each state by no means disregard the decisions of sister states. Although the latter are not considered as authoritative as the precedents of the state in which the case is tried, they are looked to as advisory statements of the law and have a great moral weight, particularly in matters in which the point in question has not been passed on in that jurisdiction.
II. The second important source of the law is the statutes enacted by the state legislatures.1 Though the number of acts passed by the various legislative bodies is enormous, the great majority of them, probably as much as nine-tenths, are purely administrative in character. They relate to the structure and functions of the government, -elections, powers of officers, etc., - and do not generally affect private law, which is left almost entirely to judicial tribunals.2 There are a few branches of private law, however, which it is customary to regulate by statute. These include principally matters which affect the public at large as well as a single individual. Thus the rules controlling marriage and divorce, wills and succession to property, the formation of corporations, are ordinarily found in legislative enactments.
During the last fifty years, moreover, several fields of the common law have been covered by statute.
(1) One of these is criminal law. In many states there is a penal code or penal law defining the various crimes and providing punishments for each of them. It is generally declared in such cases that only acts prescribed as crimes in the code shall be penalized, and the common law of crimes is abolished, except in so far as it is used as a guide for the interpretation of the statute.
(2) Criminal procedure is another subject that is commonly covered by statutory enactment, and special codes or laws regulating in detail such procedure now exist in a large number of the states.
(3) A third very important field now frequently occupied by statute is civil procedure. The technical and cumbersome system of common law pleading has been simplified and modified by
In the broadest sense, state and federal constitutions, executive orders, etc., are to be included among the sources of the law.
2 On codification, however, see below, p. 556.
legislative enactment. New York was the pioneer in this reform. It adopted a code of civil procedure about fifty years ago, and many other states have since followed this example.
(4) Another form of encroachment on the common law is to be found in the codification of the common law on some particular topic and its enactment into statute. Thus in New York one of the states which has gone far in this direction we find a real property law, general business law, lien law, etc. This tendency toward codification has been expedited by the national conference on uniform state laws consisting of commissioners appointed by the governors of various states. It has codified the law on many subjects, particularly those relative to commerce, and has recommended its proposals to the state legislatures for adoption. The most important act drawn up by the commissioners is the negotiable instruments law, which has been enacted by a majority of the states. It has also prepared a sales of goods act, a warehouse receipts act, a bill of lading act, etc., all of which have been adopted by one or more of the commonwealths.
(5) Finally, some states have taken a still further step, which many persons regard as undesirable, and attempted to codify the entire civil law. Louisiana adopted a civil code soon after its annexation by the United States. California, North Dakota, South Dakota, and some other states in the West and South have adopted codes which purport to include all the principal rules of the common law. In those commonwealths the code, instead of previous decisions, has to be examined in order to find the rule that governs a particular case. But even there, the common law has to be considered as supplementary to the code, as no code commission, no matter how wise, can possibly foresee every possible set of circumstances that can arise or decide in advance every question of law that may come up.
Most lawyers consider the codification of the whole common law an undesirable consummation of the movement toward the increase of legislation. In the first place, they contend that a civil code fails to accomplish the only purpose for which it is enacted; namely, to make the law more definite and certain. It is conceded that no code can provide for all possible contingencies and, therefore, its rules have to be made sufficiently general and elastic to allow their application to novel cases. Quite as much litigation arises over the interpretation of the code, as