Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1910-11-11

the almost blind adherence to stere
decis is the strongest argument in
opposition to the advocates OF the
theory of a return to basic principle.
But it seems to me that the erst-
while sanctity of the standing deci.
sion is overcome by the modern de-
mand of both intelligent laymen and
the scholarly professions for con-
structive Interpretation and reason
able application of the law. There has
! been. and no doubht there ought to
have been material changes in theory
and practice Of the other sciences dur
ing the past fifty years. 1t would.
therefore, seem strange indeed that
the law and its practices should re-
main in statute quo when it was made
! for the assistance and protection Of
man instead of man being made for
it.
| The facts of human life. when
infinitely examined prove to be ever
; changing Bishop says: "'They re-
semble the growth of the physical
earth. To the eye just opening a tree
! is a tree. and all trees are alike.
| Looked at more carefully the trees
appear in great varieties. We have
the oak. the beech. the sycamore. and
so on through very long list. All
differ Looking more infinitely at the
oak We find in all the world no two
trunks. no two limbs. no two leaves.
no two specimens of the fruit. exactly
alike. And it is so with the other
/ trees throughout the world No two
leaves. no two of anything else. were
ever discovered precisely identical
in form and appearance.
1t sometimes happens that the fac1s
which are presented to the practi-
toner or court are the same which
have transpred and have been pass
ed upon before. But this can be only
when the parties have dropped out
something from their recital because
! of an instructive feeling that it is un-
| important In truth, no two sets Of
facts were ever absolutely identical.
| Now, for court to decide ques-
ton differing from what has gone be.
fore, it must take cognizance of the
law engraved, not by man. but by
God, on the nature Of man. In other
words, it must take cognizance of
what our predecessors have named
the unWrltten law, or common law.
This law has already been discovered
by judicial wisdom to consist of a
beautiful and harmonious something
not palpable to the physical sight,
yet to the understand ding obvious and
plain, called principles. And the only
way in which it IS possible for one
decision to be guide to another in
volving facts differing is to trace the
decision to it's principles, and thence
to pass downward to the new facts
and inquire whether or not they are
within the same principle. This pro-
cess is termed reasoning. And be-
cause it is reasoning from things es-
tablished in the law to those not yet
established, it is called legal reason
ing, or the reasoning of the law in
distinction, to quote the words of
! Coke, from every mans reason
So that the reasoning of an individual
judge or tevt writer. Hence, also,
! judicious judges and text writer's do
not in their work proceed on their
mere individual reasoning, but upon
| the laws.
That we have departed from these
principles in our practical admins
tration of justice must be admitted.
The tendency to receive extrinsic and
Irrelevant matters in evidence, it
| seems to me, is growing apace, while
the disposition to adhere to a de-
cision upon similar facts, without re-
gard to the many changes of condi-
tons as we'll as, perhaps, a close an
alysis of the facts in the case where
in the decision relied upon was rem
dered and in the case of controversy
are faults which cries for correc-
ton.
am convinced from experience
and observation that the practice in
civil cases Of receiving all evidence
offered, as we do under the SO called
Newman act, is productive Of bad in