such opportunities, and with no such rights, our own Chief Justices and their associates have, within proper and well considered limits, corrected judicially judicial errors, without exceeding their powers, and have thus secured to themselves the possession of ample moral and intellectual freedom, while bound in good faith to complete judicial integrity in declaring and maintaining the rules "according to the golden metewand of the law and not by the crooked cord of discretion." (Lord Coke.) The conditions of the exercise of the power are well expressed by George Sharswood, one of the American editors of Blackstone, and later a Chief Justice of Pennsylvania, who wrote: "There is no inconvenience so great, no private hardship so imperative, as will justify the application of a different rule to the resolution of a case, than the existing state of the law will warrant." He admits that there is some difficulty in settling with accuracy the limits of the maxim stare decisis and that when the obstructive precedents relate rather to the application than to the establishment of a rule, they are not of so binding a character that they must be followed, but he declares, "that it is just as certain that when the principle of a decision has been long acquiesced in, when it has been applied in numerous cases and become a landmark in the branch of the science to which it relates, when men have dealt and made contracts on the faith of itwhether it relate to the right of property itself or the evidence by which that right may be substantiated - to overrule it is an act of positive injustice, as well as a violation of law, and a usurpation by one branch of the government upon the powers of another." (Law Lectures, Sharswood, p. 45.) The most admirable description of a punctilious and highminded judge in this relation that I have ever encountered, occurs in Horace Binney's Eulogium upon Chief Justice Tilghman: "There is not a line from his pen that trifles with the sacred deposit in his hands, by claiming to fashion it according to a private opinion of what it ought to be. Judicial legislation he abhorred, I would rather say, dreaded, as an implication of his conscience. His first inquiry in every case was of

the oracles of the law for their response; and when he obtained it, notwithstanding his clear perception of the justice of the cause, and his intense desire to reach it, if it was not the justice of the law he dared not administer it. **** With a consciousness that to the errors of the science there are some limits, but none to the evils of a licentious invasion of it, he left it to our annual legislatures to correct such defects in the system as time either created or exposed; and, better foundation in the law can no man lay." (Appendix to 16th Sergeant & Rawles Rep. Pa.)

The policy of the rule rests upon a broad and sound basis. Blackstone placed it somewhat narrowly upon a deference to former times. Kent placed it upon the law as it is, and urged that the best evidence of what the law is must be found in the former decisions. Other writers have bottomed it upon public convenience and utility. Judges have generally grounded it on the certainty and stability of the law: misera est servitus, ubi jus vagum aut incertum. Thus we reach a necessity inherent in the constitution of civil society, a condition recognized in other systems than those of the Common Law alone. It prevailed in Equity, which while originating in the somewhat vague discretion of the Chancellor, became in time a system governed by established rules and equally bound by precedents. It had its place in the Roman Law as has been well demonstrated by that great lawyer John Chipman Gray, in his paper on Judicial Precedents. (A Study in Comparative Jurisprudence, 9 Harvard Law Rev. 27). The objections to Blackstone's views of the Civil Law by Mr. Austin have been well answered by Professor Hammond, a profound civilian, in his elaborate and most satisfactory edition of Blackstone: but even Mr. Austin declared that: "A part of the Roman law, like much of the law of England, was made by judicial decisions, in specific particular cases. For in the Roman law, as in our own, decided cases exerted, by way of precedent, an influence on subsequent decisions, provided there was a sufficient train of uniform decisions. This influence was styled 'auctoritas rerum per

petuo similiter judicatorum'." (Austin's Lectures on Jurisprudence, Vol. II, § 858.) Even the efforts of Frederick the Great to forbid, by provisions of the Prussian Code, the courts from guiding their decisions by the decisions of their predecessors, have proved futile in practice; and Mr. Soule, to whom I made a previous reference, spent a year in correspondence and in travel through the leading Continental nations in testing the matter and has given us as results that in practical judicial life in Germany, Austria, Italy, Spain, and France judges conform as far as practicable to what has become settled either in practice or theory. (Stare Decisis in Continental Europe, 19th Green Bag, 460.) Instead then of being an artificial product, or a habit of ancestor-worship, or an irrational devotion to a musty past, it is the rule of all law. "Law to be obeyed, must be known; to be known, it must be fixed; to be fixed, what is decided to-day must be followed tomorrow; and stare decisis, et non quieta movere, is simply a sententious expression of these truths." (Chamberlain's

Essay, ut supra, 88.)

Looking back through the radiant years to our historic past, dim only because of the depth of the gulf of time, we may well declare that we live in

"A land of settled government,

A land of old and just renown,

Where freedom broadens slowly down
From precedent to precedent."

A COMPARISON OF OUR CRIMINAL JUDICIAL

SYSTEM - ITS DEFECTS AND

ENFORCEMENT.

PAPER BY

LUTHER Z. ROSSER,

OF ATLANTA.

If a machine works unsatisfactorily we would first search for defects in the machine itself; and, secondly, we would look to see if it be skilfully operated. A judicial system, while not an inflexible machine, may be examined in the same order.

In inspecting our judicial system, we do so with the knowledge beforehand that it is not perfect. No system, except that of ethics, and religion, has ever claimed faultlessness.

"Whoe'er thinks a perfect work to see,

Thinks what ne'er was, nor is, nor e'er shall be."

In a judicial system, as in machinery, the point of safety has been reached when it is equal in kind to that in general use and reasonably safe for all persons who operate it with ordinary care and diligence. If our system not only meets this requirement but is equal to the best and safest known system, its defects are in the operation and not in the system itself.

The French system, founded on the civil law, is equal, if not superior, to the other Continental systems, but who would wish it to displace ours, with its lack of true cross-examination, loose rules of evidence, partial judges, license in advocacy, and emotional juries?

In the trial of Calas, his threat to murder was only proven at seventh hand.

In a recent famous Belgian trial (where the French system obtains), a witness was permitted to say, "He told that Mme. Lagasse had heard from a lady that Van Stren told her he knew the prisoner was guilty."

The prisoner's counsel is not permitted directly to crossexamine, but only through a partisan judge.

The witness quarrels with the prisoner and the prisoner with the witness. The judge alternately cajoles and abuses. The bystanders may take part in the trial and express their approbation or condemnation.

The French judges, by reason of partisanship, were in 1881, denied the right to sum up.

Doubtless Esterhazy slandered the court when he excused himself for forging the famous "bordereau," for the purpose of supporting the suspicions against Dreyfus, by the plea that "on the trial of spies it is always necessary to forge some documentary evidence, or no spy would ever be convicted."

Our critics do not assert the superiority of the Continental system, but only that of the English system. The stoutest assertors are usually laymen, who, for lack of training and opportunity, ought not to assert so loudly.

Our legal reformers demand (what else is not certain) at least:

(a) The abolition of the Grand Jury.

(b) Indictments, if retained, be (1) greatly simplified; and (2) amended at the will and need of the Solicitor.

(c) Peremptory challenges be granted to neither the prisoner nor the State, or equally to each.

(d) That there be no presumption of innocence.

(e) That the burden of proof, not absence of reasonable doubt, decide guilt.

(f) The prisoner be deprived of his right to make a statement not under oath, permitting him in lieu thereof to become a witness subject to cross-examination.

(g) The prosecuting officer be permitted to comment upon the failure of the prisoner to make a statement or become a witness.

(h) That the wife or husband be a competent and compellable witness each against the other, subject to cross-examination.

(i) The judge be permitted to sum up the evidence.