Yorkville enquirer. [volume] (Yorkville, S.C.) 1855-2006, 1914-01-06
Miserllaaruus &eadins.
JUDGE MADE LAWS
Legislators Propose But Interpreters
Dispose.

Dispose.
Arthur L. Corbin, a graduate Of the
| University of Kansas and the Yale
Law school, writes an interesting re-
| sumo of judges and courts for the
January Yale Review. Mr.. Corbin
practiced law in Colorado several
years, and now holds the chair Of con-
tracts and torts at Yale Law school
| He says In part:
| Judges make decisions unpleasing
to large numbers Of people, and when
criticised they generally reply that
| they could not have decided other
| wise than they did; that the law"
| compelled them. Surely, we should
not recall a judge or criticise his deci-
sion II he has acted under compulsion.
II there is a man higher up, the blow
should be aimed at him. But we shall
look in vain If we look beyond the
Judge for any responsible individual.
The fact is that the judge Is law
maker. He acts under no compulsion
different from that under which any
one else acts when making any kind
Of a decision. The decision is doubt
less the product Of contending forces
and influences, but we must leave to
philosophers and theologians. the age
long dispute over free will. The judges
will is as free as the bankers will or
the will Of the homicide. He, like
other men, must be held responsible If
we wish to secure results. The result
Of his action Is "the law" and expert
ence has proved that II we wish to
prevent the action we must lay hands
on the actor.
Acceptance Of the foregoing doc
trines Is by no means general 1t Is
necessary therefore, to consider what
the law is, its origin, its sources and
the character Of its growth. This Is
no light undertaking. Many volumes
have been written about 1t. Their de-
finitions and conclusions are not in
agreement.
1.-The law" Is term of most uncer-
tain and indefinite meaning. Probab-
ly the great majority think Of the law
as a body of definite rules, certain In
meaning, definite in application, un-
changed by time and circumstance.
Just so do they think Of truth Of JUS
tice, Of good, Of morality. For some
reason the human mind loves to play
with ideas of the absolute, assuming
it's existence even though never able
to find 1t in a particular case. In law,
as in other phases Of life, we find our
selves swimming blindly in sea of
particular instances, straining to make
safe landing on the shore Of some
absolute and unvarying rule.
English Common Law.
In America we have no common law
as 1t exists in England. But we have
the old common law system Of giving
the judges the last word and Of put
ting into their hands the sword that
compels obedience. Such system Is
necessary and inevitable. When dis
pute arises, either a third party must
decide or the parties must fight 1t out.
We appoint the judge as such third
party. We compel the litigants to
abide by his decision, however bad the
| rules by which he arrived at 1t. But
| we do not have to abide by the rules
that he lays down. We are bound only
by the rule that the judge who Is to
decide our future dispute is going to
lay down in the future. Justice Holmes
has written: 1.-THE prophecies OF what
the courts will do in fact, and nothing
more pretentious, are what mean by
the law" A judges declared rules
must compete for their lives with the
| rules declared by other judges and by
all other persons. In the judicial world,
as in the animal and vegetable world,
the ultimate law is the law Of the sur
vival of the fittest.
| Do the judges make the law? Un-
doubtedly they do, so far as the lti-
eating parties are concerned. AS to
| the parties to the suit, the court Of
last resort can and does lay down the
rule according to it's will. 1t COM
mands something to be done. 1t takes
property from one to give it to anoth-
err who thereafter may demand no
more. This is the resultant Of all the
foregoing forces 1t can easily be seen
how wide variation this allows.
No Appeal from Judges.
II the party who loses his case does
not like the decision-and he seldom
does-what can he do about it? Moth
ing, after he has lost his case in the
court of last resort, except to over
throw the government. Indeed, the
court Of his last resort may be very
mean and inferior court If he lacks
the money to pay for lawyers and ap-
peals His lawyer may console him
by discoursing on how little law the
court knows-privately to be sure, for
no lawyer wishes to make himself
persona non grata to his superior Of
| ficer.
The Law Lass Behind.