OPEN QUESTIONS.

A PAPER READ BEFORE THE GEORGIA BAR ASSOCIATION,

BY THOS. J. CHAPPELL.

AT ITS ANNUAL MEETING AUGUST 8, 1888, IN ATLANTA, GEORGIA.

In the practice of his profession, the attorney at law finds himself confronted with an interrogation point, with which he is at constant war and which he seeks, by professional tactics, to avoid or overcome. As counsellor at the inception of a transaction, his skill is devoted to the avoidance of the possibility of any question arising. As a counsellor, to test or pass upon a previous transaction, his professional scrutiny is exerted to detect and uncover any question that may lurk within its bowels. But it is in the controversies springing out of affairs between men, and brought for settlement through counsel to the courts, that the question of which we speak figures most conspicuously.

With reference to facts, the openness of questions is apparent only, and not real, for the facts that give answer pre-exist, if they can only be ascertained. This, it may be said, should be doubly true of law, in that it is prescribed; but this element in the definition of law, in the presence of continually springing open questions, assumes a merely theoretical significance.

The open question is the material that brings into request and into practice the profession of law, the science of which is the proper application of the law, which is general, to the case in hand, which is particular. Each case is particular or peculiar in that it differs in its incidents and surroundings, from other similar cases, the law of which has been determined by legislation or adjudication. It is this difference that opens the door to controversy, into which the attorney, being properly invited, enters and finds his mission.

The open question represents in law, what the principle of va

riations or differentiations do in the doctrine of evolution; which is defined to be "the metamorphosis, by successive differentations of the homogeneous into the heterogeneous." It is, moreover, the outgrowth of this same principle in its operation on the affairs of men, and is an evidence of progress, development and prosperity. Laws are made and construed only with reference to existing order. The advancement of ideas, of trade, of the arts and sciences, and the infinite variety of human methods, vary the existing order, and subjects-matter, the same, become similar and, by successive variations, become different. The open question is then occasioned by a divergence from previous normal conditions. By this divergence the subject assumes new and peculiar features, on account of which it cannot always with absolute safety be referred for government to the rules "prescribed" in previous similar transactions.

In proportion as this divergence is great or small, is the degree of doubt as to the application of the rule, or as to the rule applicable. And in proportion to the increase of wealth and population, and social and commercial intercourse, and the development of the arts and sciences and their adaptation to the uses of man, will be the increase in multitude and variety of the elements that characterize and give individuality to transactions and occasion this divergence.

As Judge Cooley says in his work on Torts: "Every recognition by the law of a new right is likely to raise questions of its adjustment to, and harmony with, existing rights, previously enjoyed by others. .. Intellectual and material progress in various ways begets a complexity of business and social relations, and this adds perpetually to the difficulties of legal administration, and multiplies with no little rapidity, the occasions for an adjudication upon disputed or doubtful rights. And it renders necessary an infinity of legislation in order to adjust and harmonize the new conditions with what remains of the old."

The perennial crop of open questions, therefore, and the consequent increase of litigation and legislation, against which there is so much complaint, is not an unfavorable symptom as it is sometimes accounted, but, as is well recognized by the better informed, quite the contrary.

It is said for example of China, that until recently, since the Europeans have set in motion the wheels of progress there, the laws were so few and simple that there was scarcely a lawyer in

the empire. The community that takes credit to itself of the fewness of its lawyers and the shortness of its courts, has as vain and questionable a boast as that of the congressman, some years ago, who, to commend himself for re-election, cited his constant attendance at the capitol, and his ever-presence at his post of duty, to which an impudent opposition paper replied, that "the same might be said of the statue of Liberty, perched on the capitol's dome." Tacitus, in his concise and epigrammatic style, says, "They made a solitude, and called it peace;" referring to the accounts rendered by the Roman Generals of the order and tranquility that prevailed over the scenes of their conquests. And to express the quintessence of barrenness, it is not unusual to say of a tract of land, that it is too poor to raise a disturbance on.

Dr. Sullivan, in his Dublin lectures on English law, speaks of the policy of Lycurgus, who, when he determined to admit no change or modification of his regulations in Sparta, wisely stopped the source from which new laws spring. Commerce and its instrument-money-were interdicted, and the people, by constantly living and eating in public, were not only accustomed, but necessitated, to content themselves with what simple nature required, while "Athens, on the contrary, the richest and most commercial city of Greece, abounded above all others in a multiplicity of laws, and those for causes already mentioned, perpetually varying and changing Rome, while it continued a mere military State, was contented with a few laws and those such as were short and plain. But, when by the conquest of Carthage, and of Greece, and of Asia, floods of wealth were poured into Italy, the necessary consequences soon followed, new laws were continually made, which being continually eluded, of course, gave birth to others."

It is in the nature of things that open, unsettled questions of law should exist; that they should increase in number and complexity and difficulty of solution, with the progress of time and the advancement of the human race, being a necessary attendant upon, and incident to, affairs. If it be an evil, it is a necessary evil, and more than compensates in the good from which it springs and of which it is the manifestation.

While it demands the corrective power of government, yet this governmental duty is fulfilled in keeping pace with questions as they arise, and working out their solution, checking the evil tendencies and giving scope to the good. To anticipate issues with the hope of preventing them, experience shows, only makes confusion

worse confounded; for it is the unexpected that always happens, and, when the question arises, it opens in a shape the least looked for.

Legislative efforts in this direction are sometimes prompted by supposed injustice in a particular case; and a statute is proposed covering not only the case in mind, but, of necessity being general in its operation, more than apt to affect unjustly an infinite number of possible and probable cases of similar character, that, under varying conditions, are liable to arise. Herbert Spencer, in his very technical language, refers to this species of legislation as resulting from a failure to look "beyond proximate causes and immediate effects, . . . whereas each phenomena is a link in an infinite series, is the result of myriads of preceding phenomena, and will have a share in producing myriads of succeeding ones. And, in disturbing any natural chain of sequences, not only is the result next in successioon modified, but also all future results in which this will enter as a part cause," whereby is produced, says he, "a complexity utterly beyond human grasp."

But even the wisest legislation cannot but be a prolific source of open questions, in that it declares what shall be the law, thereby dealing with a future pregnant with events and combinations and conflicts of interests and circumstances, utterly beyond the ken of man. It can forecast the law, but not the subject-matter of its operation, and contingencies, unforeseen and unprovided for, necessitate the exercise of the judicial functions of government.

It is to the court that the open question, in its practical shape, appeals for answer, and each question must be answered in the shape in which it presents itself. The infinite variation, to which reference has been made, gives special features to each individual case, hence the maxim, “Nullum simile in quartuor pedibus currit.” And exceptions are rare where the case in hand may be said to be on all fours" with the case in point; and even in analagous cases judicial minds have been led to different conclusions, so that precedent may be set against precedent, and the interrogation point intercepts the result.

Grimke, in his work on the Nature and Tendency of Free Institutions, says: "The principles of jurisprudence, in almost every one of its departments, have been so extremely ramified by the multitude of similar, or very nearly similar, controversies, that the shades of difference between different precedents are often so minute as to hold the judgment in suspense, as to which should be

relied upon, and yet they may conduct to totally different conclusions in a given case. The consequence, that a very considerable proportion of cases that are actually decided might be determined either way, with a great show of reason and with a like reliance upon precedent in either case. It is a natural consequence of the nature of the science, which, having to deal with an infinity of detail, necessarily runs into an infinity of deductions and conclusions, which perpetually modify and cross each other."

This a more correct and philosophical, as it is certainly a more charitable view of an inevitable condition of affairs, than is sometimes taken, and, notably, by Mr. Senator Tracy, in Wright vs. Hart, 18 Wendell, wherein he says: "Lord Eldon wisely remarked that, instead of struggling by little circumstances to take cases out of a general rule, it is more wholesome to struggle not to let little circumstances prevent the application of the general rule. But this principle, in modern times, has been so poorly maintained that * ** the study of the profession is much more the study of the exceptions and evasions of a general principle, established by one reported case, which case is made the place of departure for ascertaining a new position in another; and this again in a third, and so on, until the original rule, the natural standard of the law, is obscured and utterly lost sight of * * * The consequence to be feared," he goes on to say, "is that judicial reports, instead of being beacons and landmarks to guide the public into quiet havens of security and repose, may become false lights, to decoy into the whirls and shoals of litigation."

But that a long line of precedents, although they may occasionally conflict, is of inestimable service in guarding the current of decisions, is evidenced by the wide range and divergent courses to be observed when an entirely new subject is to be dealt with, when, without the "beacons and landmarks," each court, unaided by precedent, works out its own channel. By way of illustration, the subject of Homestead and Exemption, in the treatment of which our distinguished guest, from Missouri, has so admirably succeeded in bringing order out of chaos. But he prefaces his effort by the just criticism, that "with few exceptions, the courts have not been able to seize upon or keep hold of governing principles. The decisions, in many cases, amount to a conjectural feeling for the 'intention of the legislature' when questions arose, which legislative omniscience could not foresee, and where, consequently, the legislature had no intention. I may state," says he,