94 CENTRAL LAW JOURNAL PLEA FOR A LESS UNCERTAIN AND Is our judicial system in good or in bad shape? Let the following considerations. answer. Diagnosing the Situation in Alabama.1. The finding by our supreme court that our able, earnest and fair trial judges are unable to correctly interpret the law, as shown by the perpetual stream of reversals. (Fifteen reversals out of the thirty supreme court decisions in the first number of current-68th-volume of Southern Reporter.) 2. The finding by our supreme court that our able, earnest and fair appellate judges are unable to correctly appreciate the principles of our law in that appreciable number of cases decided by our court of appeals, which are likewise reversed by our supreme court. 3. The decisions of our supreme court that it has hitherto been unable to comprehend what is the correct rule in the large number of its decisions, which it has been constrained, of course reluctantly, to overrule. 4. The considerable number of cases wherein the supreme court has, after saying that the law applicable to a given record was so and so; on rehearing said that the law was thus and so. 5. Such misadventures as our highest court of seven picked lawyers twice reversing itself, and also the trial court in the same case, on the very same appeal on the same record; as in the case where it first decided that a standing train, separating firemen, with a properly connected hose, from a burning warehouse on the other side of the track, was under no obligation to pull, or push, or part; then later decided that it should have given the fire hose right of and still later reverted to the standway; pat doctrine, which still stands. [This article is in substance the author's address to the Alabama legislature on the necessity of a permanent code commission.-Editor.] 6. The inability of that court to agree 7. The failure of that tribunal to furnish any opinion as to what the law in a given case is, save by reversing the reading of the dissenting opinion, which is often the only one, thereby, as it were, forcing us to float up and against the current of the River-of-Doubt-Authorities, in order to find where it goes. 8. The frequent spectacle of three, or fewer supreme court judges declaring that four or more judges of that tribunal, are fearfully mistaken as to the law, viz: "If the law is as it is here decided to be, is it not strange that no text-book writer in England or America has ever been able to learn it? It does seem that such judges and text-book writers as Cooley, Kent, Story, Parsons, Shaw, Gibson, Beasley, Bush, Morawetz, Jaggard, and others of equal note would have found it out, and would not have misled the world-litigants and world-courts for a century or more." TuckDiser v. Mobile Infirmary, 68 So. 13. senting opinion. 9. Another item of conclusive proof of the almost hopeless uncertainty of our system of law, and, of the near impossibility of our trial courts ruling correctly throughout a trial, is our supreme court's recent rule 45, providing, in effect, that no matter how erroneous may be the trial court's rulings, there shall be no reversals, unless the error has "probably injuriously affected substantial rights of the parties,"-coupled with the said fifty per cent of recent reversals. 10. The strongest proof of the chaotic condition of our law is our said committee's interrogation of hundreds of witnesses as to what to do about it. CENTRAL LAW JOURNAL Codification as a Remedy.-The undersigned hazards the answer: Wipe out our conflicting system of unwritten law, by providing a sure enough Code Commission, to, at least, commence the task of as far as possible, plainly and orderly writing down all our law. Write it out!!· Steady as is the growth of our written. law, its volume is so small as to make scarcely a showing upon that "five foot book shelf;" while five thousand feet of shelves would scarcely hold the unwritten law, any point of which just any man may be forced to reckon with at any moment. The very theory of the unwritten law, (and the necessity of that theory) that every man is presumed to know the whole business, coupled with the fact that the most erudite sage can know only an infinitesimal part of it (which part is liable to be declared at any moment never to have been law at all) sternly demands a supremest effort to clearly express and firmly establish the law within available reach. That demand becomes more peremptory, with the increase of the overwritten, yet unwritten law; for, among the paradoxes of this anomalous system is the fact that the unwritten law is overwritten. 95 ture of the skull, he did not foresee that some of it would drop out entirely. From Lord Holt to a suit-case "telescope" is a supplied a precedent for the North Carofar cry, yet the accident produced principle lina court to throw out a young woman's suit for mental anguish, against a railroad escope" containing her finery that she took company, for negligently losing her "telalong to get married in, because she had compromised a previous suit for telescoping the finery, the court doing this in somewhat non-judicial language, to-wit: "She could carve out as large a slice as the law allowed, but she could not cut but once." Ellner v. Railroad, 3 L. R. A., N. S. 227.. Our adherence to precedent, is shown by the way we search the ox-cart precedents of the era when carts were about the only common carriers by land, in order to ascertain whether a baby is baggage or passenger, when it is negligently allowed to be stolen from a Pullman seat, where the mother had left it sleeping, in order to go to the diner for lunch. Then, on the recrudescence of the primitive, we parade the modern instances to control first principles. Thus, a very rural darky was sued as a common carrier, and was adjudged guilty, as charged, and was denied his rolling stock as exempt, on the idea that a derelict common carrier "conjured," to say the least, by such lingo a tort-feasor. Considering himself (deemed incantations), appeal to the supreme court was thrice made, in order to raise the spell, and twice refused. The third time was the charm, because a deadly parallel between the accusation against the D. A. R. K. line and the modern L. & N. line raised the levy. Thus we are alternately gripped by the dead hand, and made to grip was Common Law Accidental in its Origin. Heretical as it may sound, the fact remains that nearly every authoritative expression of a so-called rule of the non-statute law, grew out of an attempt to dispose of some law suit that grew out of some accident. For instance, the accidental stumble of the ancient Englishman that caused him to drop a part of his skull, and to sue the man who fractured it (perhaps accidentally) after he had already sued and recovered judgment previously, for the fracture, created quite a departure, "my Lord Holt" exclaiming: "This is a new case, to which there is no parallel in the books." (A case without a Strive as we may, we are not always able precedent was a nightmare then, and now.) to follow the precedent-trail, which someSo, it was all a sheer accident that orig- track, and takes up a tree. Frequently, it times degenerates into a sort of squirrel inated the salutary principle that you can't have more than one bite at the legal cherry; gets the court "treed." For a long time, although when the man sued for the frac-ning, was held entitled to dower. Then the any divorcee more sinned against than sin the live wire. 96 CENTRAL LAW JOURNAL umpire. All these things, together with the court was stunned by a collision with a Common Law Accidental in Its Develop- It is largely a matter of choice to say whether one case is, or is not, a precedent for another, on account of the inevitable variations. Then the variations may be termed material and destructive of the character of the so-called precedent, as such; or immaterial, and render the precedent controlling, according to the viewpoint, predilections, prejudices, or sympathies of the and neighbors, because of the conclusion icisms of the law's own lawlessness,-be- The abstract justice or injustice of the CENTRAL LAW JOURNAL characters as mythical as Giant Killer, Jack, of the Bean Stalk, Jack the etc.? Those passed with childhood, but Jack Doe, Dick Roe et al., with pretenses of leases, demises, etc., survived the childhood of our race and era, and stalk through our halls of justice to-day. While the firm of Doe and Roe are about all the legendary heroes now in business, there are numerou: fictions, pretenses and suppositions that are ours by inheritance, and by no means moribund; and we are still forced to handle the case of day before yesterday with the tools. of century before last. The unwritten law is an autocrat more absolute than the Czar of all the Russias ever was. It can decide an original case just any way it pleases, by saying that reason lieth this way or that. After that, it can decide all similar cases the same way by citing the original case as a precedent; or differently, by differentiating minor or other points of departure. It can get away from the original, not only by distinguishing, but by engrafting exceptions upon the original rule. Often the rule may slay its thousands, but the exception its tens of thousands. Then there is that ghastly and growing army of overruled cases, which never were law, else they could never have been overruled, and the acts done thereunder were not lawfully done, but may have been criminal. For instance, by virtue of the common law in Alabama, a common law marriage is (or rather has been) valid here. Should the court overrule the validating precedents it would mean the confiscation of millions of dollars worth of property, and would involve consequences far worse. Previous to the overruling of a precedent, none but the immediate parties to the suit are supposed to know, and few others do know, that any such step is proposed; although the decision may be more far-reaching, as affecting them, than with reference to the parties litigating. The Certainty of Statute Law Versus the Uncertainty of the Common Law.-One relying on a duly enacted statute is anchored 97 in absolute safety; while one relying on the peatedly affirmed decision, is forever tossmost solemn, and unanimous, and most reing on the River of Doubt, and liable to be engulfed or stranded, by its sudden sinking duly enacted law forever dominates everyor evaporation, or by its reverse current. A thing to which it is applicable that is done intervening its enactment and repeal. A duly decided law becomes without the ing its promulgation and repudiation, exslightest effect during the period intervencept it serve as an invitation to that which is later declared lawlessness. In business, politics, sectarianism, and scholasticism, the right of those treated unjustly, to withdraw, is the safety valve. There can't be any withdrawal in law. There must be, then, comparative perfection. There must not be a just grievance against the law; because just grievances means, sooner or later, a "higher law." complete perfection and efficiency, or chaos Law must lead everything in its approach to will wait for us just over the hill. There is no perfection or efficiency without system; nor system without rules; nor rules without classification, and terse, clear statement. Rules that are capable of being followed are incapable of being formulated by voluminous and argumentative opinions that are often rambling and obscure, and that are modified, or explained, limited or doubting opinions that accompany them,-which ed, or are discredited by trenchant, dissentsituation is as anomalous as the proclamaly by an official herald, declaring the edict tion of the sovereign's edicts, followed closecontrary to the welfare and ancient custom of the realm. But those emasculating features are themselves part of the precedent system. Our complex civilization cannot endure the shifting uncertainties of unwritten law, which is suited only to the simple childhood of a race that, largely, can't read, and must, perforce, depend upon word-ofmouth traditions. The British Constitution is unwritten, though most of the British law is now written. We may say that, then even the "common law constitution" was unwritten; and a written constitution was first pronounced ruinous and radical. No one has ever essayed to tell why written laws are not as important as written constitutions; nor why we should not have written rules of criminal evidence, as well as written rules of other criminal law; nor why it is not as necessary to write down in statutory form, what a man shall not do civilly, as well as criminally. It is a difference in degree, and not in kind, and one is simply a bigger job than the other. Are we too lazy to tackle it? our commission would act as a board of locksmiths and guards, and see that all doors are equipped, and that the equipment be kept in systematic, and co-ordinated order. The so-called code that we have issued every ten years professes some sort of arrangement and classification; but the result is about equal to a house built of remains of an old one, and of timbers and lumber prepared by Tom, Dick, and Harry, throughout ten years of experimenting, without plans or specifications as to the quality, material or dimensions. Each succeeding code commission is governed by a set of different legislative directions, about how to tear down the old structure, and rebuild, so as to work in all the random pieces thrown around during the previous decade. Each code commissioner has his own notions, and each code commissioner's work is gone over by a joint legislative revisory committee that gallops through its pages in record time, hurling something at some sections, and hooking something out of others, re as dreams are made of." It must be confessed that while double-barreled system of statute and nonstatute law is the antithesis of system, by virtue of its mongrelism, the written part has little more system than the unwritten. For instance, we find that we need a law to cover an offense or an emergency, to deal with which we are unequal. There may already be a law enveloping the subject, but we are blissfully ignorant, so turn law-sulting, on the whole, in some "such stuff smith. Then we desire some little statute in order to crystallize some admirable principle adhering to some precedent, (as a rare embryo pearl to a mussel shell) ere it evaporates in mist; or, else, to lay some anomalous, "unwritten," troublesome, ghost. For instance: "Should we follow the court of Rhode Island, when the decision of that court was deemed so bad by the people that they rid themselves of it by an express statute?" Tucker v. Mobile Infirmary, 68 So. 13, 14, dissenting opinion. Systematized vs. Unsystematized Statute Making. Numerous similar, or, yet different statutes on the same subject, throw just as dangerous a monkey wrench into the legal machinery, as numerous similar, yet different, precedents. In fine, all our law originates in locking the door after the horse is gone, and in equipping each door with a different lock, of different combination, time adjustment, and key, and yet leaving unlocked every door through which no horse has ever been stolen. A permanent code Looked at in another way, our so-called (incomplete) code, cutting into the common law here, there, and yonder, suggests random sections of a bridge, on random levels and lines, towering about the River of Doubt, and reachable, some of them, only by raft, some by swimming and the rest by wading. Need of a Permanent Code Commission. We are going to have statutes. No legislature ever failed to add to the sum total, which mostly bear the hall-mark of Roderick Random. We should, by a commission, attempt to select and furbish up a complete stock, for all time, though duly conscious that there is nothing perfect under the sun which is, itself, infested with a variegated assortment of spots. Objections to a rational systemization of all the law should explain why, if it is essential to codify the criminal law, the negotiable instrument law, the municipal corporation law (as we have already done) and all the |