Document Type

Article

Publication Date

1915

Abstract

In these later days much is said about reforming the procedure of our courts, about recalllng our judges, at arbitrarily appointed times, and about reversing their decisions by popular vote. Most of what is said about these matters is said by those who have least reason to say it. It is no exaggeration to assert that those who are most severe in their criticism of the courts and of their procedure and most lavish in their suggestions of reform are they who know little, beyond the most general, about the courts and nothing about their procedure from personal contact with it. From such a class of self-constituted reformers lawyers and judges are not the only sufferers. All kinds of professions, all sorts of people have to submit to their pretentions and endure their intermeddling. Courts are not perfect. Law is not an exact science. It goes without saying that different men chosen to decide controversies among their fellows may reach, in the economy of nature will reach, different conclusions in respect to such controversies and the rights and liabilities of the parties thereto, and that too, whether they be judges appointed by the law or arbitrators chosen by the parties, whether they be referees or jurors; and in reaching their separate but different conclusions each will be governed by no motive other than to pronounce a righteous judgment. The human element was a large factor in the controversy when it began; it became a larger factor as the controversy proceeded and increased in intensity until the controversy was finally determined. In the administration of the law, the human element is and ought to be present. There is the man first, the judge next. But the judges of our courts, susceptible to the suggestions of the human element, as they must necessarily be, yield to its appeals less than any other body of men. Our better nature would revolt, it in the judgments of our courts, justices were not sometimes tempered with mercy. We all know that the quality of the judge depends in a very large degree upon his ability to subordinate the feelings, the sympathy, the unconscious bias of the man to the duty of the magistrate. All of us, I dare say, have been surprised to observe, at times, how fully some judges are able to merge the man into the magistrate when they are exercising their judicial functions. It is a rare gift, an exceptional quality, and happy is he, fortunate is he, great is he, who has it. No reasonable being pretends that the decisions of our courts will be just, sound or reasonable in every case. The limitations upon human wisdom and upon the virtue common to mankind forbid that. I want to emphasize my belIef that the overwhelming majority of our intelligent, observing, thoughtful, well-meaning citizens--laymen and lawyers alike, rest secure in the conviction that, in the main and with comparatively few exceptions, the decisions of our courts are just and proper and their judgments righteous altogether; that they are conceived in reason and founded on sound principles; that they enforce the rights of parties to controversies as they should be enforced and impose liabilities in accordance with right and justice, as right and justice are understood, interpreted and practiced by fair-minded, honest men. Altogether, the great controlling body of our decisions is such as would have been made by intelligent, fair-minded men, capable men of affairs. Without impairment of their general soundness, it may be admitted that decisions sometimes proceed upon technical rather than logical considerations, that sometimes they are arbitrary rather than reasonable, sometimes radically opposed without apparent cause.


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