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The chief official here is called a Master in ceeded without mischief, and a sufficient knowlLunacy, whose duty it is to exercise his sur-edge of what these limits are. veillance over all persons noncompos mentos.
In urging the increased study by our proHe is the guardian and trustee for the time be- fession of the science of legislation I mean that ing of the lunatic.
science in its broadest extent.
It should emIn New South Wales there is one lunatic in brace, as i conceive, two principal branches : every 361 of the population. The number of First, the just limits of the province of legislathe general paralytics are considerably less tion; that is to say, what subjects are really fit than in England, being one-third of that for legislative action as distinguished from those existing in that country.
that should be left to the disposition of courts In Scotland and Ireland the management or to the dicipline that proceeds from the moral and treatment of the insane has much improved agencies of society. during the last few years. The law in each of
“I am not unaware of the extent of the field these countries differs from each other, and also of inquiry thus embraced. It includes the from that in vogue in Great Britain. The first fundamental elements of economic science and Scotch act being passed in 1857, and the present the principles upon which sociological inquirers one in 1866. In the whole of Scotland there
are generally agreed. I do not mean that these are between 10,000 and 11,000 persons of un sciences must be mastered in their details, but sound mind. The first effectual act dealing that the main features should be known so far with the lunatics passed in Ireland was in 1821, as to enable the student to avail himself of their and the first public asylum opened in that results and to employ their methods. The country was that of St. Patrick's Hospital, in other important branch is the study of the Dublin, in 1745, by Dean Swift, who, as he him- proper manner in which subjects fit for legislaself has stated:
tive action should be treated; that is to say, “Gave the little wealth he had
the art of framing appropriate and effective To show by one satiric touch
laws. Our association takes much interest in No Nation needed it so much.”
bringing about a certain measure of unformity Dean Swift left nearly all his property for in our laws. the purchase of the land to erect this hospital.
“Our unwritten law is already substantially As long ago as 1/10 a committee appointed by the same, and that I have always regarded as the English government sat to consider the an impressive reason from abstaining from any condition of the insane in Ireland. Several attempt to reduce it into written forms, which minor acts were passed, but nothing satisfactory would at once tend to plunge it into diversity. until the one previously mentioned in 1891. Whatever can be done to secure this desired There are between 8,000 and 9,000 persons of uniformity must be done by voluntary conunsound mind in Ireland, and the ratio is, as certed action. The appointment made by sevmentioned previously, one in every 303 of the eral States during the last year of commissions general population.
designed to forward this effort affords us much
encouragement.' As we noted before, the papers and addresses Judge Wm. H. Taft of the United States at the recent meeting of the American Bar As-Circuit Court of Appeals for the sixth circuit sociation were of unusual merit and interest. said, in part : The president, Hon. James C. Carter, of New “The right and opportunity freely and pubYork city, in his address said:
licly to criticise judicial action are of vastly “A society that has not the moral energy to more importance to the body politic than the enforce its will in any particular case should iminunity of courts and judges from unjust asnever embody that will in the form of a statute. persions and attack. Nothing tends more to I know of nothing more needed among us than render judges careful in their judgments and a deepened conviction that the sphere of legis- anxiously solicitous to do exact justice than the lation, like that of other forms of human activity, consciousness that every act of theirs is to be has its proper limits, which can never be ex. subjected to the intelligent scrutiny of their
fellow men, and to their candid criticism. Such sion before them may sometimes contain suggescriticism is beneficial in proportion as it is fair, tions which bear good fruit. Many persons whose dispassionate, discriminating and based on a good opinion is a high compliment regard the knowledge of sound legal principles. The com- Federal judiciary with so much favor that they ments made by learned text writers and by the would deprecate a consideration of the criticisms acute editors of the various law reviews upon already stated, as likely to give an importance judicial decisions are, therefore, highly useful. to them they do not deserve. I cannot concur in Such critics constitute more or less impartial this view. I believe that in large sections of tribunals of professional opinion before which this country there are many sincere and honest each judgment is made to stand or fall on its citizens who credit all that has been said against merits, and thus have a strong influence to se the Federal courts, and that it is of much imcure uniformity of decision. But non-profes- portance that the reasons for the existence of sional criticism is by no means without its uses, these criticisms and their injustice be pointed even if accompanied, as it is often, by a direct at out. It is not unfair to those governors who tack upon the judicial fairness and motives of are the chief accusers of the Federal judiciary the occupants of the bench; for if the law is but
to say that they knew they were not speaking as the essence of common sense the protest of they did to unwilling ears. They were merely many average men may evidence a defect in a putting into language the hostile feeling of cerjudicial conclusion, though based on the nicest tain of their constituents toward the Federal legal reasoning and profoundest learning. The courts, and but for such feeling and criticisms two important elements of moral character in a
would hardly have been uttered. It will in a judge are an earnest desire to reach a just con- large measure account for them, if we account clusion and courage to enforce it. In so far as
for the popular sentiment they express. fear of public comment does not affect the
"It will be my endeavor, therefore, first, to courage a judge, but only spurs him on to
show that much, if not all, of the present hossearch his conscience and to reach the result tility to the Federal courts in certain parts of which approves itself to his inmost heart, such
the country and among certain groups of the comment serves a useful purpose. There are
people can be traced to causes over which those few men, whether they are judges for life or for
courts can exercise no control, and is necessarily a shorter term, who do not prefer to earn and due to the character of the jurisdiction with hold the respect of all, and who cannot be which they are vested, and not to injustice in reached and made to pause and deliberate by its exercise; and second, that the criticisms hostile public criticism.
which such hostility has engendered are in “In the cases of judges having a life tenure, themselves without foundation. indeed, their very independence makes the “ The Federal judiciary was the arbiter in the right freely to comment on their decisions of first great political controversy of the United greater importance because it is the only practi- States, and one which is continually reappearcal and available instrument in the hands of a ing in different forms. The general language free people to keep their judges alive to the of the Constitution required construction to reasonable demands of those they serve. On apply it to cases arising in the organization and the other hand, the danger of destroying the maintenance of the government. The two proper influence of judicial decisions, by cre- parties which had engaged in heated controating unfounded prejudices against the courts, versy over the adoption of the covenant at all justifies and requires that unjust attacks shall continued it over its narrow or broad interprebe met and answered. Courts must ultimately | tation. The Supreme Court in the beginning rest their defense upon the inherent strength of was made up largely of men whose predilection the opinions they deliver as the ground for their was for a liberal construction, and who believed conclusions, and must trust to the calm and thoroughly in the national idea. This was soon deliberate judgment of all the people as their manifest in their decisions which brought down best vindication. But the bar has much to do upon the court in the anathema of the strict with the formation of that opinion, and a discus- constructionists whose great effort it thereupon
became to weaken the judiciary. It was at-gation of capital, the other essential element tempted to control their independence by mak- with labor in producing anything, became an ing very wide the grounds for impeachment. obvious means of securing economy in the 'The great chief justice was constantly threat- manufacture of anything. Corporations had ened with this fate by partisans, and the attacks long been known as convenient commercial inupon his alleged usurpations were frequent and struments for securing and wielding efficiently fierce. Jefferson's severe words concerning the such aggregations of capital. Charters were at Federal judiciary, now so often quoted by these first conferred by special act upon particular latter day critics, were written about 1820, as individuals, and with varying powers, but so the result of a decision in Cohens v. Virginia, great became the advantage of incorporation reaffirming the power of the Supreme Court of with the facility afforded for managing great enthe United States on the validity of a State law.terprises, and the limitation of the liability of in
“The change of feeling toward the Federal vestors, that it was deemed wise in this country, courts because of the change in their jurisdic- in order to prevent favoritism, to create corpotion with respect to the negro race, affords an
rations by general laws, and thus to afford to apt illustration of how mere jurisdiction may
all who wished it the opportunity of assuming affect the popular feeling toward a court. Be a corporate charter in accordance therewith. fore the war the southern people had not looked
The result was a great increase in the number of with disfavor upon courts which did so much to
the corporations and the assumption of the corpreserve their property, while the abolitionists porate form by seven-eighths of the active capital regarded them with aversion. After the war,
in the country. The great saving in the cost of when for the protection of the negro in his production brought about by mechanical invenelectoral and civil rights the election and civil tions and the organization of capital worked rights bills were passed and their enforcement
incalculable benefit to the public, but the neceswere given to the Federal courts, they became sary price of it under our system of free right
of contract and inviolate right of private propat the same time the objects of hatred and condemnation at the south and the great relianceerty was a division of the profit between those
who were to consume the product and those of those who had been abolitionists at the north,
whose minds conceived and whose hands exeNow that both parties have wisely decided to cuted the work of production. The total wealth let the election problem work itself out and to
of the whole country was thus enormously inawait the local solution which the result of | creased, but of the increase more was necesfraud and violence in elections will compel, the sarily accumulated in some hands than others. feelings of hostility at the south against the In the general prosperity caused by the revoluFederal judiciary has greatly abated.
tion of methods of production, captains of in“The last two generations have witnessed a dustry amassed fabulous fortunes, and the marvelous material development. It has been aggregations of capital under corporate maneffected by the organization and enforced cor agement became so great as to stagger the poration of simple elements that for a long time imagination. previous had been separately used. The organi “In the mad rush for money which previous zation of powerful machines of delicate devices successes had stimulated, it is not to be wonby which the producing power of one man was dered at that some of the accumulated wealth increased fifty or one hundred fold was, how was corruptly used to secure undue business adever, not the only step in this great progress. vantages from legislative and executive sources, The aim of all material civilization in its hard and that many of the political agencies of contest with nature was, and is, the reduction the people became tainted. The impersonal of the cost of production, for thereby each character of corporations afforded a freedom man's day's work nets him more of the com from that restraint in the use of money for poforts of life. Within the limits of efficient ad- litical corruption, which is often present when ministration the larger amount to be produced the would-be briber is an individual. Men of at one time and under one management, the good repute, with complaisance and intentional less the expense per unit. Therefore, the aggre-Tignorance, acquiesced in the use of corporate
funds to buy legislators and councilmen in the deprivation of vested rights. In all such cases
"The real abuses, however, find their chief garded by the political blackmailers as fair cause in political corruption, which is wholly game, and their corruption fund must still be beyond the power of the Federal courts to preretained to prevent oppression. The people, vent or eradicate. Too frequently the popular not unjustly, have charged all of these evils to impulse is to remedy or punish the evil by givthe management of corporations.
ing judgment against the great corporations in Another evil has been the injustice done to every case, no matter what the particular issue the real owners of the corporate property by
or facts are, on the ground that the corporation the reckless and dishonest management of its has probably increased its capital or attained nominal owners. The great liberality of the
its success by corrupt methods.
It is hardly general laws for the formation of corporations necessary to point out that this mode of punand the entire failure to exercise awy stringent
ishment by forfeiture and chance distribution visitorial powers over them have enabled the
cannot be countenanced in a court of justice, active promotors and managers of large enter
however meritorious the cause of complaint prises carried on at a distance from the homes upon which it is founded. The bribery of of the real owners to increase the corporate in which many corporations are guilty is the most debtedness and capital stock so far beyond any difficult of legal proof, and the crimes of this fair valuation of their property as to put the
character are usually committed against the entire control of it in the hands of the holders State, so that Federal courts have no cogniof worthless stock, who have nothing at stake in
zance of them, the corporate success. The real owners, the
The combinations known as trusts are now bondholders, are at the mercy of this irrespon- before the State courts, and I have no doubt sible management till insolvency comes. The from their decisions that legislation which exreckless business methods which such an irre-perience will suggest, both by way of supervissponsibility and lack of supervision invite, ion over corporations and by criminal laws, will create an unhealthy and feverish competition in suppress much of their evil methods. It is setevery market, wholly unrestrained by the tled, and rightly settled, that the National Govnatural caution which the real owner of a busi-ernment can do nothing in this direction except ness must feel. The concern is kept going with
where interstate commerce is directly affected no more hope of legitimate profit, but simply by them, and not where in the course of their to pay large salaries, or to favor unduly some operation interstate commerce may occur as an other enterprise in which the managers have incident.” real interest.
William Wirt Howe, Esq., of New Orleans, “The prejudice against corporations has led who followed Judge Dillon as the Storr's Lecto much legislation hostile to corporations, both turer at Yale university, read a paper. A part resident and non-resident. It takes the form of discriminating taxation of the regulation rates “ It seems reasonably certain that the class of to be charged by those companies engaged in writers who persist in denying the obligation of quasi-public business, and sometimes of direct | England to the Roman system are contradicted
by analogy, by history and by high authority. common. If there was to be a contract drawn If we consider the English language we find up, a deed or charter to be framed, a will to be that a very large and important part of it has prepared, they alone, as a rule, could do the manifestly been derived from the Latin, either work. Many of them became statesmen, and directly or indirectly. Take, for instance, the many of them were judges. Secular and ecname of our own society, the American Bar clesiastical courts were not separated, and the Association. There is not a word in it of two jurisdictions were hardly distinguished. British or Anglo-Saxon origin. All have come The bishop sat in the county court and the from Italy or France, and may be said to be of church claimed for him a large share in the Latin origin. The question is not whether the direction of even secular justice, and the claim civil law, so called, is the basis of jurisprudence was fully allowed by princes who could not be in England in the same sense as in Germany or charged with weakness. In the eleventh cenLouisiana, but what have been its historical re- tury, we find that the Normans brought with lations and its effect in the evolution of the law them the power of organization, the sense of of England. Down to the times long after , law and method, the genius of enterprise.' It Blackstone the civil law was associated in the was Stephen Langdon, an Englishman, eduminds of many Englishmen with a system that cated at Rome, who produced to the constituwas thought to be hostile and alien to the liber- tionalists the charter of Henry I, on which ties of England.
their demands should be based and from which “From the time Julius Cæsar landed in Britain, Magna Charta sprang During the most form-' 54 B. C., and until the legions returned, about ative period of the English law the churchmen the year 450 A. D., a period of about 500 years, stood for some kind of educated justice. the Roman republic, as it styled itself, em " The custom of the King's Court was the cusbraced the civilized world and all that there was tom of England and became the common law, therein of art science and philosophy. Its and if the King's Court was of men whose jurisprudence was like the sunlight, diffusing chief culture was Romano-canonical the sylloitself in all directions, and could not be exclu- gism seems complete and the conclusion inevided from even those places which attempts table. might have been made to darken. The Ro "Another source of influence is found in the mans governed Britain, and the long period middle of the twelfth century, when l'acarious, known as the Roman Peace gave an opportun- imported from Italy by Theobald of Canterity for the arts of peace. Agriculture and com- bury, began to teach law at Oxford, and that merce were largely developed; cities, towns, vil- ! school had a flourishing school of both civil las, theaters, roads were built. Young Britons and common law. of good family were encouraged to travel and “We are all familiar with the curious associastudy abroad. There was a constantly devel- tion in England of probate and admiralty, and oping civilization. Is it rational to suppose there can be no dispute that the principal rules that such a people lived without any jurispru- of both systems are Roman through and through. dence ?
The principles and practice of the English court “The British Church was represented in all of chancery are largely derived from Roman courts, highly educated both by books and for sources, modified in some respects by the canon eign travel. By the end of the fifth century it law. It is conceded by such writers as Cruise had its own edifices, intercourse with Rome, that the devices in conveyancing known as and even with Palestine. To every churchman fines and common recoveries were derived from Rome represented the seat of everything that the civil law. They were in principle the in jurr was great in jurisprudence as well as power. (CS50 of the Roman law, which was a fictitious The kings and nobles were unlearned and the surrender in court of property resulting in a clergymen monopolized the learning of the judgment settling the title in the person in period. They knew the Roman law and its whom it was desirable to have it settled. It offspring, the canon law. They stood for will hardly be contended that such retined peace and justice at a time when violence was method of conveyancing could have been de