Los Angeles daily herald., 1890-01-15
LAW OR JUSTICE.
Col. Geo. H. Smiths Lectures
On the Subject.
LAW STUDENTS EDIFIE1
Justinian's Institutes and Pan
dects to the Roman, English
and American Law.

Colonel George II. Smith, one of th
most learned lawyers of this State, ha
undertaken to deliver to the law student
of this city series of lectures on tn
subject of their studies, which cannot fai
to be both interesting and edifying. Th,
first in the course was delivered las
night in Judge Wade's courtroom, befor,
q large gathering of the students, among
whom was interspersed good many
lawyers, and Judge Van Dyke was alst
an attentive listener.
Colonel Smith has started out with
quite radical view as to the study Of
the law as it is at present carried on.
He thinks there is a demand for a
thorough reform. In this he is sustained
by the opinion of many able iurists of
this day. He quoted many of these last
night, including excerpts from q paper
by Justice Miller of the Supreme Court
of the United States.
After showing that his view is not at
all singular, MIR. Smith next took up the
prevailing definitions of law as he finds
them in the text books of this time as
we'll as of the past. Ia this elementary
part OF the science OF law he finds much
divergence of opinion, but finds no sim.
pie definition that suits him. Nearly all
such definitions tend strongly toward
the view that all law springs from legis-
lative enactment, whereas nearly all the
law as practiced in the courts of America
and England is an outgrowth of court
rulings, the opinions of Judges and sim.
liar matter.
1t would be difficult to follow the lec-
turer through all the abstruee and pro.
found points made in the hour he talked
last night, and it would he unfair to hold
him responsible for all that follows here.
The interesting remarks of Colonel
Smith recalled to the mind of the re-
porter many things read before. The
following is result of such revived
memories combined with what the lee.
turer said:
1t seems that there is no such thing
as science of law as at present taught
and practiced. It is to reduce the
law to a scientific basis Mr.. Smith
wishes to direct the attention of the
teachers and students of the law. The
English poet Tennyson refers to the law
as very complicated system of prece-
dent built on precedent. These are rul.
lngs OF the courts often directly contra
dlctory and always more or less di.
vergent. These decisions have never
been reduced to any system or scientific
fess,seu tuie tfiefe' aA-ne@er- y55 peen
reached consensus of opinion among
lawyers as to the source whence
law flows. Nearly sll lawyers have very
confused notions on this point. The dis
tinguished jurist who spoke last night
betrayed more or less of this indecision
as to what theory of law he should ac-
cept. English common law is nothing
but series OF precedents. They begin
back in an illiterate, illogical and turbu-
lent ago. In the American system more
or less Difference is paid to this English
common law. The English writer's on
common law when they find themselves at
loss for definiti IN or rule 60 back to
the Roman law, as the Roman lawyers
were accustomed to defer to the Justin
ian institutes and pandects.
Now if these old writer's are referred to
points between law and morals. All
through the Roman law carefully main
tanned, the distinction between the lea
scripta and the leT non scripta, or the
written and unwritten law. The latter is
called, in one word, jus. 1t is supposed
to be thing immutaole, not dependent
on human enactment, but derived from
above the skies. The ler, or written law,
might not lie parallel with this at ali
points, but wherever it diverged it was
go far wrong. The English common law
is supposed to rest on nearly the same
ground as the Jus, or lea non scripta, of
the Romans. English law is full
of this idea, that the common law is
superior to the statutes OF the realm, in
that it aims more at even justice between
man and man, that it is q product OF
pure reasoning on the part of the human
mind, that reason being illuminated by
the clear rays of divine inspiration.
These old Roman, these old-time Eng.
lish ideas have been to large degree
imbibed by American lawyers. They
are divergent from the ideas of French
lawyers, whose minds are imbued with
the idea of Napoleon 1. That superlatively
great man aimed at the formulation of q
clear, consistent, scientific code of laws
That code was greatly dominated by: the
central idea that human reason as ex
pressed in joint assembly of properly
chosen Legislators was sufficient to make
just laws.
Here is the first thing to decide in the
effort to reduce the law to scientifi,
code. Take this Roman idea of the LEI
non scripta, this divinely inspired jus
1t aimed to guide the mind O
Roman lawmakers, but it LEI
them, or allowed them to run t,
extremes, regarded by us as highl,
immoral as we'll as unjust. A Roman
law decreed that slave caught with .
boar spear in his hands might be put te
death. Another gave husband thu
right to divorce his wife at his owr
whim, and there was no power to ques
tion him for doing 30. Still another gave
him the power of life and death over hi
son, with the same irresponsible and un
questioned control of that power. I,
Egypt the unwritten law allowed th,
written law to decree that their King
not only might but should intermsrr,
i