The Rock Island daily Argus. [volume] (Rock Island, Ill.) 1872-1873, 1873-04-28
Ghe Sailg Arens.
Monday, April 90, 1873.
Tha Paopls ana Ju.ties Lawrence.


lice lawrence, OF the Supreme Court. If
the constitution errs in this respect, the
proper remedy u 20 adopt new one, and
mot 10 attempt to prevent the efficient CD.
Grafton Ofthe present q On the day of the
approaching judicial election, therefore, il
is not only the right but the duty of the
people 70 sit In Judgment on all the qualifi.
cations OF Mr.. Lawrence, including not
merely his general learning in the law, his
honesty and industry, but the right prac-
teal judgment and actual success or fail
ure he has shown in adapting the old prin-
Ciples and precepts OF law 10 the new ext
gencies and novel circumstances under
which he has been called upon to admins
ter il. For the practice of Jurisprudence
Is a daily putting of new wine into old bot
ties, continual application OF pfecedents
that are well known 10 facts that are un-
preeedented. In this application the slow
and sluggish stream Of the common law
bends tardily but always, 10 adapt its gen
eral current 20 the wants of commerce and
the irresistible barriers formed BY the
changes 10 its surroundings. The com
mon law therefore Is not cast iron fact
like the idols " the paeans that must be
worshiped but oRnnot-be bent but rather
n spiritu& and ideal genius of progress,
guardianship Of enlightened reason, hexi-
BILE and kind, whereby the wisdom of the
past Is admitted 20 guide our steps with |
out trammeling them with the errors or
unfitness Of the past AT least il is such
when administered by 6rst-class minds
who have the cand0r to recognize the fact
that the law is daily growth, and that no
man can apply the old law 10 the new
facts, without IN some degree making his
lao, and mourning some of the responsible
tiles Of a legislator, as well as those of
Judge. The body Of the common law, now
filling thousands Of volumes, has been
evolved from the minds Of the Judges,
very largely without the Intervention Of
legislator II was not in Blackstone
day what it had been in Bracton's or
Coke 5, and is not to-day in all things
what II was in those of Kent and
Marshall Volumes Of leading cases,
etc, cases which decide points that had
never been decided before, attest the ex-
tent 10 which our courts make our laws,
while still other volumes Of revised and
Oyerruled and obsolete cases attest that
the repeating power is no whit less than
the legislative power Of the Judges
Though the current Of innovation and re
peal moves slowly, it nevertheless moves.
Though the theory of every decision is
that Vt Is based on principles previously
held, yet the fact is that this process Of
assumed evolution is in fact one ofconstant
creation. Judge Lawrence, therefore,
must be held responsible not only as a
judge for the law he has administered, but
asa legislator for the law he LGs made
The people are the judges whether, in his
leading railroad decisions, he found his law
already made, or whether he evolved it |
anew from the depths of his own moral |
consciousness, and, ii the latter, whether, |
in making his law, he made il unwisely |
Every lawyer would declare the Alton and I
81 louis railroad case leading case,
. e. one which decided some point not pre-
yiously entirely adjudicated This fact
alone establishes that the decision has an
innovating and legislative character. For
so much OF It as Is leading novel, or
legislative, Justice Lawrence has incurred
the same legislative responsibility as if he
had effected the same result by u vote in |
the Legislature. Let us examine the ex-
tent Of this responsibility The common !
law, I, C., the courts acting without the aid of /
the Legislature, had from time immemori- |
al held that common carrier, for instance 1
a teamster or terryman who carried for all |
-
who offered at reasonable rates, aud a iurvt
would decide whether the rate was reason
able as a question Of plain and simple fact.
When railroads came in, in 1924. the
courts held them u be common carriers of |
freight and passengers, and therefore |
Obliged 20 carry at reasonable rates. How
the question of reasonableness of rates
was % be decided as concerned this novel
species OF common carrier, was not then
decided because the decisions in which
they were held 10 be common carriers
did not involve the question of reasona-
bleness OF rates, but of certain other Obh- /
cations. Daily, with the MULTIPLICATION
and growth of railways, the adjustment
OF their rates became more complicated. /
until the question Of the reasonabieness of
any special freight or fare involved an nc.
curatG knowledge Of the cost of railway
business and the demands of freighters.
such AZ only railroad experts could have.
and such as no two of them could agree
upon. While the early courts might
sensibly and truly have said that a iury
could Judge whether terryman or teams
terhad overeharged for some single service
which any one OF the jury could render,
and could, therefore. estimate it, it was a
very different thing ~ hold that a iurv
could solve the thousands o. difficult rrub.
lens involved IN the single question Of
whether fare from a given point 10 Lex
lngtOn should be less or more than the fare
from the same point b bloomington. No
verdicts Of two or more juries on the same
question Of fact need agree, and no decision
by jury TINT given rate is reasonable
would Oblige q road 10 take that rate ex-
cept in the case decided 1t would cost n
thousand times the amount Of the fare or
freight 70 get decision, and when Iobtaius
ed IL would decide nothing except for thai
case.
During the process ofdevelopment ofthe
railway business and before any questions
OF reasonabeness of rates we're Irrigated
the various roads obtained their charters
and entered into the enjoyment of the vest
cd night to run their roads as common
carriers at reasonable rates. The legal
processes Of determining the question Of
reasOnableness OF rates did not of them.
selves expand pdrj pdsu with the expand-
ing and increasing complexity OF the cues
ton itself and, as nobody would he fool
enough 10 60 before juries to correct un.
reasonable rates, no effort was made IN
correct them, but, If they existed. the peo-
pie paid them, and submitted. In this
state Of the case, rates become in the
opinion Of the Legislature unreasonable
and they enacted among other checks that
a road should not charge more for less
distance than they did for greater, there
by expressing the decision Of the Lepisla-
ture that such a charge was unreasonable
Mr.. Justice Lawrence did not --pro-
uounee this violation Of any particu-
lar clause of the constitution, for the
only provision in the constitution
bearing directly on the matters expressly
authorized the Legislature ~ regulate
treights and fares, and inferentiaily 10
Judge Of their reasonableuess. But he
pronounced It violation Of the spirit
Of the constitution, because it did not pro-
vide for submitting the question of the
eness Of the rate to a jury. No
express clause in Che constitution required
i 10 be so submitted. Indeed, he con
,eded that a jury would be totally incapa-
Die of intelligently deciding t. He quoted
10 previous decision Of any court 70 Justify
he salient point Of his own. He decided
= Al. A. -