Evolution of Law
August 5, 1893 — First Women Lawyers Meeting, Queen Isabella Association, Isabella Club House, Chicago IL
Human law is for human government. What a study that law presents! What a field it traverses! What marvels of prejudice it exhibits! What a wilderness of error it contains. What amplitude of reason it unfolds!
But that law, with its infinity of good and evil, was not written at one bold stroke on tables of stone or papyrus roll. It is a growth of many centuries. With each step that man has taken, from the lawless past to the living present, has come also a law corresponding to the needs of the day and hour. New liberties, new rights, new privileges, have spring up, grown and amplified with the march of time and the growth of men.
Liberty of speech has emerged from the bigoted past, where no man dared to speak, even remotely, of Church or State. It has passed the period when the Rev. William Handley was indicted for preaching a charity sermon; when Sidney was beheaded for whiting his discourse on Government; when Seldon was sent to the Tower for drafting the celebrated Petition of Rights; when Thomas More was beheaded for “constructive reason” in refusing to recognize the much-divorced Henry VIII as the head of the Church; when to common on the ministers of the Crown was seditious libel, and the publication of one’s own parliamentary speeches was followed by imprisonment and the burning of the books by the public hangman.
By slow steps we have passed these milestones on the highway of freedom of speech, till to-day the right is everywhere admitted and secured by constitutional guaranty.
Woman is not now man’s slave. The law does not now give a guardian the right to compel his ward to marry the man of his choice or forfeit her property. It does not permit the husband to correct his wife with a club, nor invest him with her personal property; it does not now generally give him a superior right to the children of the marriage, nor allow him by will to appoint a guardian who shall have a right to the custody of even infant children superior to that of the mother; it does not deny her equal education, nor the right to sell her property or make a will, nor does it disbar her the professions, nor render he ineligible to all of the public places of trust and profit.
The law has grown broader and has reached up to higher ideals of justice and equity. The laborer feels its force. Servants are no more the subject of compulsory sale by the magistrate in open market or at the fair; their wages cannot legally be fixed without their consent; the employer cannot lawfully beat his servant into subjection, and the law does not determine what kind of clothing he shall wear nor compel him to display the badge of his calling.
The narrow and technical path to the temple of justice has broadened into a highway. By statutes of amendment and reform, we have abandoned the super-refined, precise and formal pleadings of the common law, by which untold wrongs were done, have abandoned the scores of fictions that made court records a mass of foolish falsehood — have abandoned the servile pleadings in old chancery, where the petitioner asked for justice “for the love of God and in the way of charity.”
These monuments of learned folly and servile cant we have destroyed, and on their ruins have builded a broader and more rational system, where plain statement takes the place of technical jargon, truth is substituted for falsehood, fact for fiction, and honest demand for cringing supplication.
The criminal law is even more prolific of example. The sanguinary code of a barbarous age has gradually disappeared. The one hundred and sixty offenses made capital by the Criminal Code when the American Revolution gave birth to the republic, in the last century have diminished to murder and treason. Torture to compel confession is long since past. Mutilation by cutting off ears and eyelids and slitting nose and tongue, are but traditional barbarities.
The branding-iron is gone, and the burning-stake abolished. The whipping-post, the pillory, and the stocks are memories only. Even the use of the ducking-stool, that fine old emblem of English equality and tenderness, has fallen into “inocuous [sic] desuetude.”
Ordeal — walking on red-hot bars of iron, or holding the hand in boiling water, ceased to be a mode of trial in the seventeenth century; tying and throwing into the river ceased as a method for determining witchcraft in the eighteenth, and personal combat or wager of battle ceased early in the nineteenth.
The criminal-court trial has been remodelled. We do not refuse to allow the accused to call and examine witnesses; we do not deny him counsel; we do not shut his mouth from telling his story under oath, explaining his conduct or justifying his act.
It may be that the pendulum of justice has swung too far from the stern and cruel rigor of the ancient law, and that too great laxity marks our criminal system; but to me it is better, far better thus, than to suffer the shame of an age that produced and endured a Jeffries, who boasted that in a single circuit he has tried, convicted and sentenced to torture and death two hundred and fifty-nine of England’s freemen.
The times have moved away from the old to newer and better things. Step by step the law has risen to higher and purer ideals. One by one the leaves of the flower of justice have unfolded. It has not only risen higher; it has broadened to meet the demands of an active age. The railroad, the steamship, the telegraph, the telephone, electricity, street-car systems, patents and copyrights, presented new questions and demanded the exercise of new legislation and judicial thought. The demands have been met. The old lines of the law have been obliterated and the field of its dominion widened to correspond to the broadened and broadening thought and activities of the closing nineteenth century.
Necessity was the mother of the new law on the newer subjects of its care, but what were the forces by which the wise and benign present evolved from an irrational and malignant past, and what will be the forces by which a wiser future jurisprudence will be evolved form the present?
The answer is, the irresistible pervasive influence of numbers with a common thought, which we call public opinion. Public opinion is the fore that changes the old and creates the new laws on a land. It is the vital spark of all laws, Its presence is life, it’s absence death, in statute and rule alike. At their root laws are but the expression of this force.
But public opinion, public sentiment and public thought is not a fixed and determined force. Education and art, moral sentiment and physical environment — the slow forces that civilize and humanize the race — work a constant change. The public sentiment of yesterday is not in harmony with that of to-day, and to-day’s will discord with that of to-morrow. Since the character of laws is dependent upon this, it follows that they will change with the march and counter-march of civilization, advancing as it advances, retrograding as it retrogrades, and dying when it dies.
But our civilization for a thousand years has been an advancing one. Each century has produced newer thoughts, better sentients, and with and out of them have evolved newer and better laws conforming to higher ideals.
Public opinion has performed its work in the reformation of the law, and in a double manner — directly, by withdrawing its support form laws, and so devitalizing them as to make them dead letters; and indirectly, through the machinery of government by operating upon the Legislature and the courts.
The Legislature should be the birthplace of change and reform. An elective body chosen by the people from their own number, should be quick to feel, and prompt to respond to public demands. In practice it responds with a slow voice. The reason is obvious. Few members chosen from the people have the ability to properly draft or successfully advocate a law to crush an evil or to work a reform. Of the few really qualified, most are engrossed by the petty demands of a local constituency passing a Street Car Bill, or fixing a bounty on squirrel tails or coyote scalps; and the rest of them are absorbed in some gerrymandering measure for party benefit.
In such legislative bodies reforms do not rise spontaneously. They come only with the imperious demand of a long-suffering people. But the demanding voice — public opinion — does not at once find utterance. The mass of people are inarticulate, and wait in dub silence for a voice — a voice that comes at last, gives utterance to public thought, loosens the public tongue, and with a storm of speech demands obedience.
It results that legislation follows far in the wake of public opinion; instead of being a bold leader, as it should be, it is a struggling camp follower.
Through the courts public opinion finds expression in a three-fold manner. There are certain crimes for the commission of which a jury will not convict, and by their constant refusal to do so the law dies, and thus are laws unmade, repealed without the aid of a legislative vote.
Sometimes when the enlightened thought of a court and the concurrent thought of a people, has shown a precedent to be wrong in principle and vicious in practice, a braver judge has dared to trample on the precedent and announce a new doctrine born of the full light of the living present instead of begotten in the darkness of a savage past.
So was Mansfield brave when, against a doctrine hoary with three hundred years of wrong, he declared that slaves could not breathe in England.
So was Bronson brave when, against an unbroken line of English authorities, he declared that the doctrine of ancient lights had no place in American jurisprudence, and made possible the stately business buildings of America.
Brave men these, planting the standard of justice in new soil. But not all men are brave enough, and not all questions are of a character to admit of such bold handling. The great advances toward the goal of justice have been made by winding, devious ways. Subterfuge, evasion and falsehood have been a common resort.
Years ago the law of entail prevented the sale and breaking up of landed estates. Parliament would not repeal it, and the judges could not. Public policy and public opinion demanded a disintegration of landed properties; so judges invented fines and common recoveries, kinds of suits in court by which the entail was destroyed and the law defeated.
Under the common law a married woman’s property was absorbed by her husband. Parliament did not interfere, but so frequently was she wholly despoiled of it that chancery made for itself a jurisdiction over her property, and protected her in it in defiance of the common law.
The common law denied to owners of land the owner to dispose of them by will. The growing needs of an advancing society demanded this privilege; public opinion found a voice in its favor. The judges again evaded the law, and by the intervention of uses the privilege was asserted and allowed.
The state of Mortmain, and after that the statute of Uses, were passed to favor the nobility as against the Church. They were opposed to the sentiment of the time, and judges, by a bold interpretation, and by inventing uses and trusts to defeat them, reduced the statutes to a nullity.
In early times title to land could only be tried by a write of right. It was a dangerous proceeding. A single error in procedure or proof, under a mass of technical rules, would forever destroy one’s title, no matter how intrinsically good. Justice generally miscarried, but the Legislature would not reform the system, and the judges distorted the action of ejectment so as to try title.
The action was begun by a man who did not exist, commonly known as John Doe, against another man who did not exist, known as Richard Roe. The plaintiff had to state one truth, his title, and three lies, lease, entry and ouster, and the party in possession of the property might then come in and defend, provided he would admit the three lies to be true, and declare the one truth to be false. This was rather crude, but it was a manifest improvement on the old write of right.
Only a hundred years ago, in England, all the graver crimes and nearly every petty offense, was punishable by death. The accused was allowed no counsel and permitted no witnesses. History tell us that under the reign of Henry VIII seventy-two thousand persons were executed for theft and robbery alone. A harvest of death followed court sittings. Judges shuddered at the bloody work of the law. Parliament lagged in reform. The public sense was shocked. Judges could not repeal the laws, but they could prevent their execution. And so they adopted, and on occasion enforced, all manner of whimsical and technical rules to prevent conviction, until it came to be an exceedingly difficult matte for the prosecution to pilot the accused through the labyrinth of rules to a conviction.
To evade the law, and as a courtesy only, judges began to permit the prisoner to tell his story as a theory, then as a matter of information, then to support it by witnesses, then to be prompted by counsel, till at last the custom of the court has become the right of the prisoner.
These were some of the great steps in the evolution of the law form savagery to civilization, and serve as illustrations of the devious methods by which justice has been compelled to work through the consciences of men into the domain of law. But all judges have not been endowed with such courage or finesse. Unhappily, there is generally a slavish adherence to precedent.
If a judge can only find some decision by some accidental judge of another State, whom nature fitted for a coal-stoker, and misfortune, in the shape of party majority, pitchforked into the judicial bench, he is happy, adopts it, and the doctrine becomes another disfigured patch on our judicial system.
And so we have in California, a State purchased from Mexico, where the common law never prevailed, and where irrigation is essential to its highest prosperity, and decision that adopts the doctrine of riparian rights because that was the the doctrine in England in the good old revolutionary times, and now water must run in our streams as it was accustomed to run, undiminished in quantity and unaffected in quality.
In the State of Illinois the court has gone back three hundred years, and adopted the rule in Shelly’s case as a rule of interpretation of deeds and wills. It is a rule that not one person in a hundred thousand understands, and by it the will of the grantor is overridden in direct violation of the statute. This statute and decision are in a broad sense behind the times, and the law is unsuited to the day and hour.
The election to the legislature of members, broad enough to see and quick enough to feel the demands of the hour, and able and conscientious enough to make that demand a statutory one, would remedy the evil at once. But how could we expect genius or morals in legislation under the present political system>
The selection of judges for life, to be pensioned in old age, would make them independent and give them courage to pronounce their views from the bench, and make a better system of judge-made law than can be made from the patchwork of many courts, or of one court, with a changing personnel.
But the greatest and most salutary effect could be produced by making the Supreme Court of a State an advisory council of the Legislature, without vote, of course, so that it would not invade the legislative domain.
The Supreme Court have constantly forced upon their attention the evil features of our laws. Day after day they are admonished of the injustice resulting from a statute or decision, and as often they admit the wrong, but tell us the remedy is with the Legislature. Better than any other body they know the evils; better than any other the know how to amend the law, for they see it in all of its phases and through the eyes of different advocates; they have the learning; they are abreast of the thought and sentiment of the day; and because all men take a proper pride in the perfection of their work, they, more than any other body, are interested in building gup a symmetrical system of laws that will secure substantial and equal justice to all.
The State Supreme Court, from its very nature and position, is the best body to suggest and to frame the great body of those general laws that govern and control men in their dealings with each other in the business affairs of life.
Let the judges of the Supreme Court note the contradictions in the laws, and the unjust features developed in them during the interval between sittings of the Legislature. Let them prepare remedial measures, and act as an advisory council for the Legislature during its sittings, and I believe that a decade will not have passed till the hideous deformities of injustice will have disappeared. Contradictions will be made harmonies, and the law be no longer a laggard, but a living force of the age, in harmony with its new activities and intellectual advance; in its evolution abreast of the light and progress of the time, and in its character a true exponent of the thought, the feeling, the sentiment, in short, the civilization of the age in which it exists.
With a rational, harmonious system appeals would be fewer in number, correct conclusions would be more readily reached, judges would not be killed with overwork, and decisions could be rendered in the life-time of the litigants.
Source: The Albany Law Journal, 48, 1893, pp. 345-347.