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headland to headland, and the judgments of John Marshall, who was like a mariner with a compass by which he could find his way across uncharted seas so as to proceed straight across to the desired and destined haven, may almost be said to be “ familiar as household words” to a trained English lawyer. It is one of my earliest recollections of the practice of the law how the English Court of Appeal was convinced by reference to à chapter in Mr. Justice Holmes' profound and masterly analysis of the Common Law, that a previous decision of the English High Court was wrong, and that the true principle was to be found expounded in his luminous treatise. And, just before I left England, I was arguing before the House of Lords the question whether, what we call “ bonus shares,” and you call “stock dividends," were liable to income tax, and I had the satisfaction both of winning my case and of establishing the true principle of law largely by means of citing a recent judgment of Mr. Justice Pitney in the Supreme Court of the United States.
Equally remarkable is the development in the two countries, side by side, of that branch of the law which deals with personal rights. An interesting book might be written by an English lawyer and an American lawyer jointly, comparing and contrasting provisions for securing the rights of married women, for protecting children, for enabling the insolvent debtor who has done his best but is overwhelmed by misfortune, to have another chance, for admitting parties in civil and criminal cases as witnesses in their own behalf, and for removing disabilities of sex. We have at length followed the American lead in throwing open the profession of the law to women.
I think it will be found, if a comparison were made, that the main differences between the private law of England and America are more in the region of practice and procedure than in the realm of substantive rights. Nearly 50 years ago we swept away the distinction between law and equity, and it may fairly be said that the existing system in England is one which does not deprive a man of his rights because he has come to the wrong court. The old system of pleading has been abolished, with the result that more simplicity has been introduced into the preliminaries of trial, though with a sacrifice of precision which many of the English lawyers realize to be a misfortune. So far
as England is concerned, the challenge of a juryman is practically unknown, and we have not found it necessary to inquire into the antecedent knowledge of the jury, but have thought it sufficient to rely upon their sense of responsibility as citizens. The use of juries, however, has much decreased of late, and though for my part I think twelve jurymen much the best tribunal to give a competent decision on insoluble problems, such as the amount of damages which should be given for a broken leg, or rendered to a lady who has lost her husband in a railway accident, and married again, there is an undoubted tendency in the old country to dispense with their assistance in cases which formerly would have required it. But I think the main claim which an English lawyer would seek to make in favor of his own procedure is on the score of speedy trial. Justice delayed is justice denied, and though our circuit system sometimes leaves an accused person in custody for as much as two or three months before his case is heard, the trial itself is carried through without delays, the opportunities for appeal are circumscribed, we have abolished much of the technicality which formerly offered a way to escape for the guilty, and the carrying out of the sentence promptly follows conviction. In civil cases great efforts have been made to avoid delay, and it is possible in our commercial courts to have a case tried within a few weeks or at most a few months of the issue of the writ.
But these differences are all differences of detail in which each country may have something to teach and something to learn. The great fact is, that English law and American law, derived from the same origin, are pursuing the same goal, and in our intercourse with one another we are realizing more completely the solidarity of the friendship of the English-speaking world.
What are the unseen but unshakable foundations upon which Anglo-American friendship rests? It is a friendship the peaceful continuance of which over a full century of time we were preparing to celebrate in that year of destiny 1914. It is friendship which since that date has been cemented and consecrated in the valley of the shadow of death; by heroic suffering and triumphant effort in a common cause. In Flanders and in France, British and American dust lies mingled. Both nations share, in the immortal words of Abraham Lincoln, in solemn pride that
is theirs to have laid so costly a sacrifice upon the altar of freedom. These young lives, so boldly offered, and so bravely surrendered, are at once a token and a pledge. They are a token of that unity of spirit pervading alike this young nation and the old land from whose loins she sprang, which no width of ocean could divide and no memory of ancient feud could destroy. And they are a pledge for the future of Anglo-American friendship and thereby for the peace of the world. Love of liberty, a joint literature, the same language, and the common law—these are the four evangelists of the gospel of Anglo-American friendship; these are the Big Four who can best guarantee that hands will be stretched across the sea and grasped in a common resolve to save those for whom this stupendous sacrifice was made from a renewal of strife. And among these influences which for the reconciliation of mankind and the saving of humanity from the unspeakable horrors of armed conflict, law, in its highest and broadest sense, is one of the chief. It is the instrument of justice; it is the handmaid of order; it is the guarantor of individual right; it is the arbiter of dispute and the reconciler of difference; it is the cement which binds together the fabric of human institution; it is the standard which society erects to guide those that are tempted, to recall to the true path those who are led astray, and to symbolize the fact that each one of us cannot live for himself but must serve and work for the common good. Let us then boldly proclaim our pride in this great profession; our resolve to bring no dishonor upon its escutcheon and our belief in the value of the contribution which it may make to the future advancement of the world.
WITHOUT A FRIEND.
CHARLES S. THOMAS,
The student of American constitutional history will note that many of the objections urged against the ratification of the federal compact, although successfully challenged by its advocates, have been justified by the experience of time. Whatever the causes of this evolution, and there are many, it is evident that although the benefits to be derived from the adoption of the Constitution were correctly forecasted in 1787 by its friends, the development of federal, at the expense of state, authority was foretold by its opponents with equal accuracy.
The developing needs of a stronger and more efficient national authority, the inevitable tendency of the greater to encroach upon the domains of the weaker jurisdictions; the incredible growth of commerce and industry, of systems of transportation and communication; the unavoidable conflicts between sovereignties however delimited, exercising authority over the same people within the same territory; judicial construction; the necessity of federal expansion to the general welfare, and the verdict of the Civil War, have all contributed to the general result. The opposition encountered by the progress of innovation has become less insistent as it has become more obviously unavailing. Indeed, it would seem that except the legal profession and the occasional interests of classes and sections, opposition has largely given way to acquiescence, and acquiescence to active encouragement of a more intensive centralization.
Loyalty to the states, and a jealous insistence upon their respective sovereignties was a political characteristic of the American people when the union was formed. It was manifest during the greater part of our national life. But it survives largely as an abstract principle, finding formal expression in party platforms and occasional advocacy in Congress.
The expansive development of federal activities has not been so destructive of personal liberty or of the general welfare as the opponents of the Constitution apprehended. But it has by no means proven an unmixed blessing, and if the range of political authority be ultimately covered into the central system, the results may fully justify the assertion of Thucydides that “it is impossible for a democracy to govern an empire.”
The men who formed and those who expounded and construed the Constitution have been united in the assertion that the integrity of the states is as essential to the union as the integrity of the union is to the states. Chief Justice Chase declared the indestructibility of each to be essential to the perpetuation of both. Mr. Hamilton declared the state governments to be a leading principle, and could never lose the whole of their powers until the whole people of America were robbed of their liberties. And James Wilson expressed the same view with equal emphasis.
Yet in his eulogy of Justice Wilson in 1906, President Roosevelt boldly asserted the possession by the federal government of many powers not explicitly granted, nor yet expressly reserved from it by the Constitution. Later, his great secretary, Mr. Root, defending the position of his chief, declared it to be the right and the duty of the general government, when required by the public interest, to exercise those powers belonging to the states which the latter might neglect or disregard. This novel doctrine of a twilight zone provoked an acute controversy, yet so transient that it scarcely interrupted the steady advance of federal activities. Distinctions between the powers of states and nation, of course, continue and are frequently emphasized by courts and Congresses, but the assertion recently made that Congress has become the judge of the character and the scope of its legislative powers, and the law of the land is that which it sees fit to enact, is the blant expression of an obvious fact.
These invasions of state authority have followed the two methods of Constitutional amendment and of legislation. Both are stretches of federal power, although the former have been effectuated under the orderly processes of the federal Constitution, while the latter claim sanction under the shield of implied