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VOL. LIII

JULY, 1915

T

SOME ABUSES OF JUDGE-MADE LAW

WO recent criminal trials, to which the sensational press has given great publicity, throw into strong relief certain grave weaknesses of American judicial procedure. I say "American," not because we are in that respect behind other nations, but because, as a democratic people, we ought to be far in advance of others in these matters, and because it is with American law that we are concerned.

Al

In both the Thaw and Becker trials, the weakness of the so-called law of evidence is most painfully apparent. The law of evidence is a body of tradition, affected somewhat by occasional legislative modifications. though it has no statutory force, it is safe to say that it is more held in veneration by our judges than are the legal enactments of the people. It is, in fact, judge-made law, and one of the worst examples of that accumulation of hampering tradition which the legal profession holds in such high regard, and everybody else despises.

It would be more accurate to speak of rules of evidence, than of the law of evidence, but the latter is the more usual phrase for this mass of custom, which is not law, and which so often defeats both the purpose of the law and the substance of justice.

The most curious result of this body of rules is that which it has come to produce in the mental habit, the The habitual reasoning of lawyers. The "legal mind," surcharged with this method of procedure, as if it were a scientific and truly logical mode of investigation, has come to have an il

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logical cast deeply, often vitally, at va-
riance with correct thinking.

Of course it is true that here and there the rules of evidence coincide with scientific method, but it is wholly by accident when they do. so. They have not come into being as the result of a process of reasoning, nor have they become established with the purpose of bringing out the truth of a proposition, or accusation. They are the result of tradition, mostly dating back to conditions long forgotten and inoperative, and often arising from customs whose antiquity defies investigation. There may be something pic turesque in keeping these things alive, that might excuse them as mere matters of form, but there can be no excuse for their long continued abuses and frequent perversions of justice.

There is practically no use in telling these things to a lawyer, or arguing them with him. The "legal mind" is so imbued with this method of procedure that it cannot, literally is mentally unable, to see its illogical character. Reform must come from the lay public, and be forced upon the practice of the courts by legislative action.

The rules of evidence in use in American courts are mostly taken from English practice, although they are not so bad as the practice in England. Less than fifty years ago, the rules of evidence in England were matters of local custom, and a judge traveling in circuit from county to county, must adopt one procedure, say, in Lincolnshire, and a very different procedure in Northumberland. These local traditions arose from spe

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