Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1880-12-09
LAW As A INSURANCE TO PROGRESS.

II sometimes happens that law hinders
progress, and It does it in attempting to
measure new phenomena by the rules
which were devised to measure old phe-
nonlena with. Take the legal position in
regard to railroads. They are declared to
be highways, not because they are high.
ways, but because before they were in
vented highways were the only means of |
communication on land A railroad really |
has scarcely anything in common with
turnpike road. 1t is not and cannot be
open to the public use il the same way.
1t is built for the special and sole use of a
particular kind of vehicle, and is adapted
TO no other kind. It is highway for
trains alone, in fact. But when the law
yers were called upon to legislate for rail
roads they turned TO the laws of the past,
and though there was nothing IN those
laws which applied to the new state
of things, they thought it necessary to
employ the old forms and theories,
and so they have hindered progress by
building up fantastic and irrational
theories about the non-existent analogy be-
tween railroads and highways. The same
kind of confusion has arisen from the legal
treatment of charters. Every one who has
looked into the subject knows that the
primitive charter was an entirely different
instrument from the modern one. The
whole theory and practice Of government
had changed since the old charter system
was devised, but though the circumstances
were no longer the same the lawyers
chung to their musty presidents, and
the consequence is that the modern
theory of charters has been confused and
entangled by this irrational aud unscien-
tiic procedure. Ii the theory of highways
and that of charters had been rearranged
when it became evident that entirely new
conditions had arisen, an enormous amount
of litigation and futile legislation and pop
ular friction and ill-feeling and injustice
would have been avoided. No doubt it is
very difficult to cut loose from the past, and
in many cases it is inexpedient to do SO.
But the invention of railroads introduced
radical revolution in communication, and
thenceforward it was impractieable to fol-
low the old theories, and they should
therefore have been abandoned. 1t is
probably very common idea that the dead
are soon forgotten, but if men reflected
they would perceive that the government
of the world is carried on far more by the
dead than by the living, and that the
silent influence of those long gone to their
rest molds not only opinions but actions
more generally and more strongly than any
contemporary experience. And if we, in
bringing to this continent the legal
traditions and doctrines of old Eng
land, have secured many priceless
benefits, it must also be ad-
mitted that we have entailed upon our.
selves many serious drawbacks and hin
ORANGES, arising out of The want of har-
mony with actual conditions too frequently
existing in these venerable maxims and
theories. And the cause of law reform is
embarrassed at every step by the incon-
gruous manner in which archaic forms are
interviewer with mora modern concepts
Doctrines which were applicable only to
Feudalism have been bent and twisted
and strained to make them fit into reput-
hcan codes. Rules which were the result
of an experience long obsolete are adhered
to despite of their inapplicability. Ore
consequences of all this is con-
fusion in the Interpretation of
fundamental concepts which leads to
astonishing results frequently The
attempt to transmute regal absolutism
into democratic termg6ology has been es-
peciafiy DISASTROUS, Such words as
sovereignty" have been terribly misused
and ill.placed. The tendency of most men
to cling to old forms and rules has beenillus-
trated perhaps more strongly in the law than
in any other department Of mental activity.
By slow degrees we are emerging from
the darkness and confusion, but the prog
ress is painful and hating, and at intervals
some judicial tribunal, more than usually
saturated with obsolete ideas, renders
decision which not only checks advance,
but seems to thrust society backward
toward barbarism.