stantly narrowing limits, it becomes a matter of the first importance, since it leads of necessity to exercise of legislative powers by the courts. No one will assert at present that the separation of powers is part of the legal order of nature or that it is essential to liberty. We recognize to-day that it is a practical device, existing for practical ends; that it is only the principle of division of labor applied to government, and that it exists in modern states as a mere specialization, for the reason that any function will be better fulfilled by a special organ than by one charged with many functions.1 It is often better that some other organ perform the special function in single instances, than that it go wholly unperformed. Just as in the organic body, when any one organ fails in its function others are pressed into service to do its work as well as they may, so in the super-organic body politic failure of one organ to do its whole work, or to do it well, puts pressure on the other organs to fill the gap. Hence, while invasion of the province of one department by another is by no means wholly evil, it is a sign either of backwardness in development or of organic disease. Rigid constitutions, difficult of amendment, particularly where, as in the case of the Fourteenth Amendment they seek to impose the political or economic views of one time upon all times to come, are presenting to modern common-law courts the same problem which the rigid formalism of archaic procedure, and the terse obscurity of ancient codes, put before the jurists of antiquity. Cases must be decided, and they must be decided in the long run so as to accord with the moral sense of the community. This is the good side of spurious interpretation. It is this situation that provokes the general popular demand for judicial amendment of constitutions, state and federal, under the guise of interpretation. Looking at the matter purely from the standpoint of expediency, and leaving legal theory out of account, the bad features of spurious interpretation, as applied in the modern state, may be said to be three: (1) That it tends to bring law into disrepute, (2) that it subjects the courts to political pressure, (3) that it reintroduces the personal element into judicial administration. Let us examine each of these propositions in more detail. In the first place, in a modern state, spurious interpretation of statutes, and especially of constitutions, tends to bring law into disrepute. Law is no longer the mysterious thing it was once. This is an age 1 Bluntschli, Allgemeine Statslehre, Bk. VII, Chap. I. and a country of publicity. It is no longer possible to impose upon the public by covering legislation with the cloak of interpretation. The people, when they call for spurious interpretation of constitutions and statutes, ask the courts to legislate, and understand exactly what they are asking. The disguise is transparent and futile, and can only result in creating or confirming a popular belief that courts make and unmake the law at will. Second, in a common-law country where questions of politics and economics are so frequently referred to the courts, the knowledge that courts exercise, or may exercise, a power of spurious interpretation subjects the courts to political pressure which can not but impair the general administration of justice. If the dominant political force for the time being may, or thinks it may, amend the constitution off-hand by procuring judicial spurious interpretation, it is evident that pressure is bound to be brought to bear upon the courts to adjust constitutional provisions to the exigencies of current policy.] Of course this is to be apprehended to some extent wherever the doctrine of supremacy of law and a written constitution give the! courts a certain political character. But when it is known or believed that the courts will wield a legislative power, the danger is greatly aggravated. Popular feeling that courts make law, and hence that judges are political officers to be elected as such, is making more than one commonwealth realize Bacon's saying, "An ignorant man can not, a coward dares not be a good judge.' Finally, spurious interpretation reintroduces the personal element into the administration of justice. The whole aim of law is to get rid of this element. And, however popular arbitrary judicial action and raw equity may be for a time, nothing is more foreign to the public interest, and more certain in the end to engender disrespect if not hatred for the law. The fiction of spurious interpretation can not long deceive any one to-day. The application of the individual standard of the judge instead of the appointed legal standard is quickly perceived, and is, indeed, suspected too often where it has not occurred. If confidence in the regularity of judicial administration is impaired, laws are worth little. "The life of the laws lies in the due execution and administration of them." In fact, lay advocates of spurious interpretation desire a reversion to justice without law. "If we examine their desire more closely we shall find that nothing less is demanded than 1 As Mr. Dooley puts it, "the coort follows th' iliction rethurns." 2 Works (Montagu's Ed.) 2, 378. 3 Bacon, Works (Montagu's Ed.) 2, 378. realisty constructive justice, constructive laws, constructive verdicts, and constructive penalties, or, which is equally bad, the substitution of individual feelings and views for the general rule and even law." Are the temporary advantages to be derived from speedy judicial amendment of constitutions in any wise compensation for the serious and permanent injury to the legal system which is involved? Courts must decide cases; they must decide them in accord with the moral sense of the community so far as they are free to do so. If the proper agencies of government do not supply the necessary rules, they must administer justice without rules or must make rules. Granting this, the fact remains that there should be no such necessity, or at least it should be reduced to a | minimum, in the modern state. Over-rigid constitutions, carelessly drawn statutes, and legislative indifference toward purely 1 legal questions are not permanently remedied by wrenching the judicial system to obviate their mischievious effects.. As the sins of the judicial department are compelling an era of executive justice, the sins of popular and legislative law-making are threatening to compel a return to an era of judicial law-making. Both are out of place in a modern state. ROSCOE POUND. 1 Lieber, Legal and Political Hermeneutics, Chap. 2, § 16. 2 It is instructive to note the indifference of legislatures, which are pouring out a huge volume of political statutes, toward defects in the law governing private acts and relations. Courts may point these out again and again, yet nothing is done to cure them. See two notes by Judge Irvine, 18 Green Bag, 466, and 19 Green Bag 317. LARCENY AND THE PERKINS CASE. It is not the object of this paper to present an extended discussion of the doctrine, established for the State of New York by the final decision in People ex rel. Perkins v. Moss. Its chief purpose is to summarize the facts of the case, to recite briefly the history of its progress through the courts, and to comment upon the conflicting views contained in the Court of Appeals opinions. The facts are neither complicated nor numerous. During the fall of 1904, Mr. McCall, the president of the New York Life Insurance Company, promised Mr. Bliss, the treasurer of the Republican National Committee, that the company would contribute up to the sum of $50,000 for use in the Presidential campaign then in progress. The relator, Mr. Perkins, advanced from his own resources to Mr. Bliss $48,500; these advances were made at the request of Mr. McCall, who promised relator that he should be reimbursed later. The reason for relator's advancing the money, instead of having the contribution made directly from the funds of the company, was stated at the time by Mr. McCall to be, that it would make it easier for him to refuse demands which were being made for other political contributions. In December, 1904, the relator was reimbursed, pursuant to the directions of President McCall, after the matter had been discussed in a meeting of the Finance Committee, of which Mr. Perkins was chairman, and Mr. McCall a member. No formal vote was taken in the committee about the matter, nor was any entry made of the transaction in the minutes of the committee. The reimbursing check was made payable to J. P. Morgan & Co., of which banking house Mr. Perkins was a member; neither the face of the check nor any of the entries upon the Insurance Company's books indicated that the check was given to redeem Mr. McCall's promise to contribute up to $50,000 to the Republican National Committee. Upon depositions by officers of the company stating the foregoing facts, and a letter from the relator to District Attorney Jerome, declaring that the relator believed the foregoing expenditure to be for the benefit of the company, and that he derived no personal advantage of any kind from the transaction, and had no intent other than to serve the interests of the company, Magistrate Moss issued a warrant of arrest for Mr. Perkins, charging him with the crime of grand larceny in the first degree. Immediately upon his arrest, writs of habeas corpus and certiorari were issued in his behalf, and the relator was brought before a Special Term of the Supreme Court. After a hearing, this tribunal dismissed the writ of habeas corpus, and remanded the relator into custody. Upon his appeal the Appellate Division, in the first Department, reversed the order of the Special Term, and discharged the relator. The People then appealed to the Court of Appeals, where, by a vote of four to three, the decision of the Appellate Division was affirmed. It appears to have been the purpose of the District Attorney, by the rather unusual procedure employed in this case, to secure an authoritative judicial determination of the question, whether such a diversion of an insurance company's funds as has been described above amounts to larceny under the New York Penal Code. If it did not, then it would be a waste of public money and an unwarranted stirring up of scandal to secure indictments against sundry persons, and bring them to trial for conduct which was not criminally punishable. The single question, then, in this case was, did the affidavits, which were presented to the magistrate, and which set forth the facts narrated above, furnish any legal evidence of the commission of the crime of larceny by Mr. Perkins?1 That crime is defined in section 528 of the Penal Code, which reads, so far as material, as follows: "A person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person, * **having in his possession, custody, or control, as a bailee, servant, attorney, agent, clerk, trustee, or officer of any person, association or corporation, * * * any money, property, evidence of debt or contract, article of value of any nature, or thing in action or possession, appropriates the same to his own use, or that of any other person other than the true owner or person entitled to the benefit thereof, steals such property, and is guilty of larceny." The learned judge, who heard the case at Special Term, decided that the facts presented to Magistrate Moss made out a Gray, J., in 187 N. Y., at p. 418, 80 N. E., at p. 385, says: "If the information, which was laid before the magistrate furnished no legal evidence of the commission of a crime by the relator, then he was illegally restrained of his liberty." |